Coombs v Patrick Stevedores Holdings Pty Ltd

Occupational Health and Safety Act 1983 - s 15(1) and s 51A - prosecution of 5 charges concerned with driving straddle cranes at container terminal - allegation of repetitive strain injury - 3 charges established on evidence after full hearing - pleas of guilty entered to 2 charges during trial - whether pleas constituted a conviction and brought into operation the higher penalty regime of s 51A - whether the remaining charges were subsequent offences for the purposes of s 51A after Court pronounced sentence on first charge - each charge considered separately in establishing objective seriousness of each breach - significant differences in seriousness of each class of charge - principle of totality applied - issue of payment of moiety where prosecutor not a WorkCover inspector but an individual acting on behalf of a branch of a federally registered union - discretion to order payment up to half of amount of penalty - basis for exercising discretion - costs - alleged difficulty in Court having contested costs assessed in absence of detailed rules - penalty imposed.

CATCHWORDS: Statutes - Fines Act 1996 - s 122 - "moiety" of penalty at discretion of Court - factors relevant to exercise of discretion.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 s 122

Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703-704 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Cole v Director General of Youth and Community Services (1987) 7 NSWLR 541 at 546. Coombs v Patricks Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Dodd's Family Investments v Layne Industries Pty Ltd (1992-1993) IPR 261 Inspector Christensen v Harnischfeger of Australia [2004] NSWIRComm 131 at [50] Inspector Jones v Supercut Concrete Services Pty Ltd [2004] NSWIRComm 83 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [58] Johnson v Johnson (2004) 205 ALR 346 Kirkby v A&MI Hanson Pty Ltd CT 1121 of 1993 Maxwell v The Queen (1995) 104 CLR 501 at 507 O'Sullivan v Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at 202 CASES CITED: Pearce v R (1998) 194 CLR 610 R v Holder: R v Johnston [1983] 3 NSWLR 245 at 260 Regina v Houlton [2004] NSW CCA 214 R v Jerome and McMahon 1964 Qd R 595 R v Tonks & Goss (1963) VR 121 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Saraswati v The Queen (1990-1991) 172 CLR 1, per McHugh J at 21) Veen v R (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales v Warra Ridge Pastoral Co Pty Ltd [1994] NSWIRComm 104 (23 September 1994) WorkCover Authority of New South Wales (Inspector Dawson) v Plastichem Pty Ltd (2001) 110 IR 351 WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane and Rigging (Aust) Pty Ltd [2004] NSWIRComm 277 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 AR 284

PROSECUTOR: Mr B Docking of counsel SOLICITORS: Turner Freeman LEGAL REPRESENTATIVES:

DEFENDANT Mr T Game SC with Ms McDonald of counsel SOLICITORS: Freehills

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter Nos. IRC 5194, 6102, 6103, 6104, 6105 of 2000. Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd. Prosecutions under s 15(1) of Occupational Health and Safety Act 1983. JUDGMENT [2005] NSWIRComm 56 1 The decision of the Court in Coombs v Patricks Stevedores Holdings Pty Ltd [2004] NSWIRComm 77 found three contested proceedings under s 15(1) of the 1983 Act had been established and noted that during the course of the proceedings, the defendant had pleaded guilty to two further charges under s 15(1) of that Act. This judgment deals with the submissions on the question of appropriate penalty having regard to the nature of the breaches as found by the Court. 2 The judgment dealing with the liability of the defendant deals extensively with the evidence and the contentions of the parties. It is unnecessary for the purposes of the present task to restate those matters: it is sufficient to state that the prosecution case was aimed at the risk of straddle crane drivers sustaining soft tissue/repetitive strain injury primarily to their necks, shoulders and backs while performing duties at the defendant's container depot. The evidence showed that the defendant had adopted a new system of work with an emphasis on increased productivity in circumstances where expert reports had indicated risks of straddle crane drivers adopting extreme postures over extended working periods. It was in the nature of this type of injury, arising from the repetitive performance of the task, that it was often difficult to state precisely when the injury was incurred. In the present case, the evidence showed that a number of drivers had suffered repetitive strain/soft tissue injury as a result of driving the straddle cranes but the evidence did not permit a conclusion that all drivers, or even the majority of drivers, in fact suffered this type of injury. The expert evidence accepted by the Court and not seriously challenged was that a number of personal factors were relevant including age, previous but unrelated injuries and a propensity to succumb to this type of injury. In brief, young, strong and robust men were less likely to suffer this type of injury than older and less robust men. In this sizeable workforce, the evidence demonstrated that one person had sustained a permanent injury with a 15 per cent loss of facility: there was no suggestion in the evidence that any other employee engaged in this task had suffered a permanent injury of any kind as a result of performing the work of a straddle crane driver, although symptoms continued in a number of cases. 3 Against that background, it is appropriate to briefly set out the nature of each of the charges. The charges may be aptly described as (a) a system of work charge; (b) an information, instruction and training charge in two distinct periods; and (c) a plant charge falling into two distinct periods.

The unsafe system of work charge (Matter No IRC 5194) covered the period 26 October 1998 to 26 October 2000 at the Port Botany operations of the defendant. The charge referred to the failure to ensure the health, safety and welfare of all employees, and in particular Messrs Crewes, Euers, Hargreaves, Howlett, Magnus and Watson. It was alleged that there was a risk to health, safety and welfare to any and all of these employees and that there was a risk of neck shoulder spine upper limb and/back injury. The Particulars specified how each named employee had suffered injuries while driving straddle cranes at Port Botany. The defendant's failures and/or omissions were particularised as any or all of the following: requiring any or all the employees to work for a full shift, apart from one break in the cabin of the straddle; rostering any or all of the employees to work for a full shift, apart from one break in the straddle; a failure to provide to any or all of the employees operating straddles more than one break per shift; a failure to provide three employees for every two straddles; a failure to rotate regularly throughout the shifts any or all of the employees when operating straddles; a failure to implement an exercise programme prior to work commencing on shift for any or all of the employees operating straddles; and a failure to implement an exercise programme at appropriate intervals throughout shifts for any or all of the employees operating straddles. This charge was defended.

Based on the medical evidence and the evidence of the drivers as to the existence of various soft tissue injuries, the Court was satisfied that during the period covered by the charge, straddle drivers at Port Botany terminal were potentially at risk of suffering repetitive strain/soft tissue injury as a result of the various postures they adopted in driving straddle cranes. The evidence did not allow the Court to conclude that all drivers or even a significant majority of them had suffered these types of injuries. The evidence suggested that, for a variety of reasons, during the period of the charge not all employees were exposed to the same level of likelihood of suffering repetitive strain soft tissue injury. The evidence supported by learned journals found that the frequent adoption of extreme postures especially of the head and neck rendered operators at risk of repetitive strain type injury. There was this level of risk when straddle cranes were introduced at the Port Botany terminal in 1997, although the evidence showed that the risk did not progress to actual soft tissue injury until after the system of work was altered by the 1998 enterprise agreement. In the period covered by the charge, the potential risk crystallised into a real risk such as being capable of being the subject of proceedings under the Occupational Health and Safety Act. The defendant accepted that there had been an increase in productivity and that there had been an effective reduction in the manning scale under the 1998 enterprise agreement. It was also accepted that straddle drivers worked seven and a quarter hours when Queensland Occupational Health and Safety authorities had recommended a maximum for static postures and/or repetitive tasks of four hours in any eight hour period, a ratio accepted by the defendant's own expert Mr Caple. The defendant was aware of an increase in reports of driver injury but did not think that further breaks in the work or job rotation were warranted. The prosecutor's expert, while critical of the fixed nature of the cabin, accepted that a rotating console in the cabin was not available during the charge period. Based on all the evidence, the Court found that there was a causal link between the postures adopted by the named drivers and the risks of back, neck and shoulder injury: those risks extended to others in the workforce performing straddle work but did not necessarily extend to all employees. The evidence did not permit a conclusion that risk of soft tissue injury was causally linked to any single matter particularised, but a combination of exercise, job rotation, performance of other duties exercising other body muscles and a number of breaks from work rather than the one long 45 minute break for lunch would address and remedy the risks demonstrated to exist during the period of the charge. It was the nature of repetitive strain/soft tissue type injuries that they frequently took time to manifest themselves and that a combination of movements and approaches was required to overcome the risk. The prosecution case focused on the lack of frequent formal breaks laid down by the defendant in order to address the risk of repetitive strain type injury. The defendant, from a variety of reports it had obtained prior to and during the charge period, had been made aware of the potential for repetitive strain injury because of the postures that drivers would adopt in driving the straddle. The drivers were not directed to take breaks or any alleviating measures during this period, although the defendant was aware through reports and assessments by experts and medical practitioners as to what was required either generally or in relation to individual drivers. 4 The first plant charge, alleging a failure to provide or maintain plant that was safe and without risk to health, covered the period from 16 December 1998 to 29 April 2000 (Matter No IRC 6105 of 2000). The Particulars alleged a risk to health, safety and welfare of any or all of the employees in that there was a risk of neck, shoulder, spine, upper limb and/or back injuries and set out the injuries suffered by individual drivers. The defendant's failures and omissions were then particularised as: a failure to provide seating in the cabin that ensured health and safety; a failure to provide access to the radio in the cabin that ensured health and safety; a failure to provide access to the computer terminal in the cabin that ensured health and safety; a failure to provide mirrors to reduce the degree of frequency of neck rotation and flexion requirements; and providing straddles with a fixed cabin. While there was evidence of ruts in the roadway surface used by the straddle cranes and as a result vibration created in the driving cabin of the straddles, no measurement of the nature and extent of that vibration had been taken by the prosecutor. The Court was left in the position of having no evidence as to the severity of the vibration in the cabin caused by the road surface and no evidence directly linking such vibration with an identifiable risk to the health and safety of the driver. In relation to the seat of the straddle crane the potential dangers were specified as: (a) the seats were fixed in the cabin and required the driver to sit 90 degrees of perpendicular to the direction of forward travel; (b) the drivers experienced weight adjustment lever difficulties; (c) the drivers experienced back rest angle adjustment difficulties and stiffness; (d) the drivers experienced seat height adjustment difficulties, including the adjustment not working; (e) the drivers experienced poorly maintained lubricated seats; (f) the drivers experienced inadequate seat suspension.

The Court accepted the evidence of the straddle drivers and other evidence that supported the continuing difficulty with the stiffness of the adjustment mechanisms on the driving seats and the need for the seats to be sent to the maintenance depot because of the inability of the driver to adjust it. In January 1998, WorkCover representatives and representatives of the defendant accepted that the seat adjustment on the straddles was not easy and should be rectified: the manufacturer/distributor was to be advised and asked to attend to the adjustment. A Noel Arnold report had made recommendations, accepted by the defendant, that included the introduction of maintenance to ensure the straddle seats were serviceable and the need to ensure that the drivers adjusted seats to their personal requirements before commencing a shift. The difficulties in maintaining the seats and having them operate properly continued during the charge period. Mr Watson gave evidence that, in February 2000, he hit a bump in the yard causing the seat suspension to "bottom out" leading to a "jarring" of his back and he had a number of diary entries nominating seat problems in the straddle while at the same time complaining of a sore back and hip. There were similar types of complaints made by some of the other drivers but not with any great frequency. One particular seat had an extensive history of maintenance and continued to create problems over a long period of time. A 1997/1998 defendant's document dealt with posture in the driving cabin and stated that the most severe problems involved the spine and muscles of the back. The document went on to state that unnatural postures, bad seating and/or lack of operator education in the method of adjusting the seats to suit their own builds had been found to actually accelerate the deterioration of the intervertebral disc. The Particulars in relation to the difficulties with the seats were held to be established by the prosecutor. The evidence, however, did establish that a cabin with a rotating seat or a rotating platform was not available during the charge period, and the Particular dealing with the use of a fixed cabin was therefore not established. The Particulars dealing with access to the radio, access to the computer terminal and the failure to provide mirrors were also not made out. During this period it was noted however that the evidence demonstrated that only one driver (Mr Watson) appeared to have suffered some injury because of these problems with the inability to adjust the seats of the straddle crane . 5 The second plant charge dealt with the period between May 2000 and September 2000 (Matter No IRC 6104 of 2000), and was particularised in precisely the same way as the first plant charge. The Court found the prosecutor had established in this period the same Particulars as established in relation to the first plant charge, but had failed in relation to the same Particulars of the first plant charge. 6 The first charge alleging the failure to provide information, instruction and training necessary to ensure the health and safety at work of the defendant's employees covered the period between 16 December 1998 and 31 May 1999 at Port Botany (Matter No IRC 6105 of 2000). The charge alleged that there was a risk to the health, safety and welfare of any or all of the employees and that there was a risk of neck, shoulder spine, upper limb and/or back injuries and particularised the same injuries to each individual driver. The defendant's failures and/or omissions were particularised as: a failure to adequately or at all to provide to operators of straddles information, instruction and/or training in operating posture; a failure adequately or at all to provide to operators of straddles information instruction and/or training in seat adjustments; a failure to adequately or at all provide to operators of straddles information, instruction and/or training in steering wheel adjustments and a failure adequately or at all provide to operators of straddles information, instruction and/or training in stretch exercises. The defendant, after the conclusion of the prosecution case, pleaded guilty to this charge and to the following Particulars: a failure to adequately or at all provide to operators of straddles information instruction and/or training in operating posture; a failure to adequately or at all provide to operators of straddles information, instruction and/or training in seat adjustment; a failure to adequately or at all provide to operators of straddles information, instruction and/or training in steering wheel adjustments; and a failure to adequately or at all provide to operators of straddles information, instruction and/or training in stretch exercises. 7 The second information, instruction and training charge covered the period 1 June 1999 to 13 September 2000 (Matter No IRC 6104 of 2000) and was particularised in exactly the same way as the first information, instruction and training charge. The defendant pleaded guilty to the same Particulars in the second information, instruction and training charge as it had pleaded to in the first information instruction and training charge. 8 The remaining Particulars in each of the information instruction and training charges repeated Particulars which were common to all charges. THE EVIDENCE 9 Apart from the issue of costs, the prosecutor called further evidence from Mr Watson, Mr Euers, Mr Howlett and Mr Hargreaves. Broadly speaking this evidence was directed at establishing the current medical status or ongoing nature of injuries received from straddle driving and to call into question the timeliness and effectiveness of steps taken by the defendant to address the risk of repetitive strain injury during and after the charge period. 10 Mr Watson continued to perform work as a straddle driver after he gave evidence in the primary proceedings and in April 2003 was retrained in clerical work although his usual work remained that of a straddle driver. In May 2003 he ceased to perform duty as a straddle crane trainer because of discomfort and vibration when standing on moving straddles during instruction. He said that he continued to experience pain in the lower back left side after sitting in a straddle and stiffness in the neck. Exercise relieved the stiffness for a period of time but then more exercise was required. He did not find exercise assisted his back pain. Since February 2003 he had experienced numbness in his little finger on the right and left hand after driving straddles for about two hours. It affected his hands in undertaking domestic tasks and he was sent to see a neurologist by the defendant's insurers in April 2003. He had altered his driving style to attempt to relieve the pain. For a number of weeks from May 2004 he consulted the defendant's remedial massage person for a number of problems including problems with his hands. On one particular day he was not able to complete his straddle shift due to pain in the lower back, groin and extending to the knee and he was presently under rehabilitation or return to work programme. 11 Mr Watson set out the circumstances where he thought the position under the 2001 certified agreement had not altered. Drivers were still required to drive for extended hours and little relief was available. He was critical of the structure of the breaks in the work and described how they still resulted in long periods of driving. About May 2004, the defendant placed a new trial seat in one straddle which was nevertheless similar to the original seats. In addition the company over the last few months had started modifying the suspension adjustment lever in other straddles to make it more accessible. From April 2004, training had commenced on two seats fixed in a training room to familiarise employees with the seat adjustment of existing straddle seats. In addition, over the last three months an employee representative on the Occupational Health and Safety Committee had undertaken a more thorough survey of existing straddle seats with the aim of achieving a proper operating standard for the seats. The straddle seats were inspected regularly by this person and where repairs were needed, a report was made to management. Mr Watson's view was that this survey only succeeded in identifying that the seats were of a bad design. The survey had also revealed that maintenance had not been carried out on the seats, as many functions were not operating. 12 The massage therapist was provided free of charge to the drivers, but required an appointment at the therapist's rooms or at the terminal. These appointments had to be taken outside work time. While Mr Watson felt some benefit and more flexibility in the short term following physiotherapy after a day or two pain increased. Another person was available during the early afternoon to advise on exercising, stretching and diet. The times at which this person was available were not convenient and the service did not appear to be widely used. 13 Mr Watson could discern no change in the rotation of drivers from that which had been available under the 2001 agreement. There had been no trialling of 6 hour shifts, introduction of job rotation, making administrative arrangements for exercise and physiotherapy, nor had an automatic pickup and place facility or automatic straddles been introduced. The employer had rejected a suggestion of an additional 20 minute break for yard straddles put forward by employee representatives and had also rejected the suggestion that it adopt Dr Bodel's recommendation for 5 minute breaks every hour of straddle operation. In addition, although Mr Watson was able to take posture breaks every 30 minutes, that system was not enforced by the defendant, nor had the defendant adopted Dr Bodel's recommendation for a break or rotation from straddle work every 2 hours. Similarly, there had been no adoption by the defendant of the ratio of working in straddles on 4 in every 8 hours. There had been no discussion as to the variety of reports and recommendations that the company had received from different experts. 14 In March 2003, a directive was issued to straddle drivers that they would participate in a programme entitled "Stretch Now" after every 20 moves. This would involve the drivers spending 3 minutes carrying out recommended stretching exercises and, once completed, the next job would be issued to drivers. Mr Watson said that, although there was much talk about this, that system was not introduced. There had been no discussion about cabin movement/vibration. Inspection of ruts and holes in the driving surface were not regular and seemed to take place only when the defendant was reminded by occupational health and safety representatives. While Mr Watson regarded the adoption of the safe straddle driving 10 point plan as a welcome step, he was of the view that progress was slow in view of the risk to which drivers were exposed and the information which was then in the hands of the defendant. 15 Mr Euers reiterated the complaints he had made in his earlier evidence about the 2001 enterprise agreement. In general, he supported the comments made by Mr Watson as to the lack of progress and the defendant's failure to implement a number of recommendations and changes concerning the driving of straddle cranes. 16 Mr Howlett stated that since he gave his evidence in the primary proceedings he had suffered a tennis elbow injury as a result of operating a straddle and was unable to perform work between October 2003 and his return to light duties in late May 2004. This injury had affected his recreational pursuits revolving around fishing and boating. He had seen a number of doctors between 2003-2004. He noted that since February 2002 the only additional measures introduced by the defendant to reduce risks associated with driving straddles was the engagement of a biomechanic and a stretch therapist. The biomechanic attended the terminal where employees were able to consult with that person out of working hours. The timing of this service was inconvenient in Mr Howlett's view and was, personally, not helpful to his condition. He found the assistance of the stretch therapist helpful in straightening his lower back but he was unaware of any other measures that the occupational health and safety committee, or anyone else at the terminal, had sought to introduce to minimise the health and safety risks in operating straddles. 17 Mr Hargraves said that, after giving evidence in the case in March 2002, he was involved in lengthy discussions and was ultimately asked on behalf of the defendant whether he would like to return to team leader duties. Mr Hargraves accepted that work, but made it clear that he would accept any other duties rather than driving straddles. He noted that after this meeting, he occasionally worked as a team leader but was still predominantly placed in a straddle. In August 2002, Mr Hargraves complained that he found driving straddles uncomfortable and, while happy with rotation of duties, he found it not sufficient to address his condition. The defendant then arranged training as a yard team leader, but after 2 weeks of that training, Mr Hargraves was placed back in a straddle. In September 2002, Mr Hargraves was injured in his straddle and was certified unfit for work having jarred his neck and the thoracic area of his spine from continually driving over rough surfaces. He had a week off work, was absent for a further month on annual leave but, on returning to work in early November 2002, continued to work in straddles as a team leader. In mid-December 2002, he again injured himself whilst working in a straddle, driving over a pothole while working on the midnight shift. This occurred in darkness where visibility was poor and, as a result of the impact, he severely jarred his neck and upper back. It was established that the suspension on the crane was faulty. A few days later, his doctor certified him unfit to drive straddles. The following day, he was informed by the defendant that he was to be placed in a rehabilitation programme as a team leader. Mr Hargraves had continued in that work without driving straddles since that date, but had not been promoted to the position of team leader. He was undertaking a variety of duties including escorting duties, with his usual duties being in charge of the road and delivery area. 18 In late 2002, Mr Hargraves became aware of three other straddle drivers whose injuries prevented them from returning to that work and, because of that inability, were terminated. 19 Mr Hargraves stated that, as a result of his injuries while driving a straddle going back to early 1999, he was in a constant state of discomfort, the level of which ranged from minimal to extremely painful. He tried to take medication only when he was in extreme discomfort or pain. He swam on a regular basis to help strengthen his condition and also attended remedial massage therapy. He found his work as a team leader continued to affect his injury because much of the work on a ship could be very physical and demanding. There were occasions, however, when the work was moderate and did not affect his condition. He had been directed by the defendant to attend medical examinations but had not been informed of the results nor had there been any discussion of any recommendations made. 20 The 10 point plan for straddle drivers instituted by the defendant, according to Mr Hargraves, did not appear to have any effect on the real issues associated with the operation of straddle cranes. In his view, the driving system still fell well short of relieving problems caused to drivers. The 2001 enterprise agreement, in his view, had not rectified nor removed the health and safety risks associated with the operation of straddles. Under this system, in the yard where Mr Hargraves now worked, drivers received only a 20 minute break - apart from the 45 minute meal break. There were a lot of new and younger casuals working in this area and he had observed them experiencing neck, back and other injuries relating to straddle operations. In his view, it was becoming increasingly difficult for some of the casuals to drive the straddles for a full shift. He was aware that there was still a high degree of injuries reported to First Aid arising from straddle crane operations. It appeared that employees were using their credit and debit hours system operating under the roster at times that would allow them to avoid working in the yard and rail areas. Mr Crewes, nevertheless, was holding the position of crane driver but Mr Hargraves had not seen him drive a straddle crane in the last 12-18 months. He was also aware that Mr Magnus no longer drove straddles or trained employees in relation to driving straddles: this had come about because of his injuries. 21 For the defendant, affidavit evidence was submitted from Mr Bilston (the Port Botany terminal manager), Mr Giesler (the defendant's national training manager) and Mr Eldred (general manager, Risk Management).

Mr Bilston noted that there were approximately 175 permanent operational employees employed at Port Botany and a shared pool of 233 permanent guarantee/supplementary employees who were available for allocation to work either at Port Botany or Darling Harbour terminals. He anticipated that, once the proposed 2004 certified agreement was in operation, there would be 216 permanent operational employees and 83 permanent guarantee/supplementary employees employed at Port Botany of which 297 would be qualified to operate a straddle carrier. Mr Bilston spoke of the safety, health and environment (SHE) policies of the defendant as he had reviewed them since October 1998. During this time there had been two occupational health and safety (OHS) policies dating from July 1997 and January 1999 and an environmental policy introduced in January 1999. Until early 2001, there was no comprehensive OHS framework in operation at a divisional level, with each business unit within the terminal essentially in charge of managing its own SHE issues. From approximately 1993 until 2002, annual audits of SHE management at the terminals were conducted by independent risk management and safety consultants. In mid-2000, there was also an informal review of SHE management systems across all business units of the divisions and, following that, it was decided that the terminal's division would establish an OHS management system. That move involved the adoption of a terminals OHS policy statement, a terminals OHS policy, a risk management process and an OHSMS document control procedure. The OHSMS was reviewed in mid-December 2001 when it was decided that a more tailored OHS programme needed to be developed to encourage behavioural change in relation of OHS issues. OHS issues, prior to 2002, were also raised and discussed with the occupational health and safety committee. If the defendant had safety issues, they were raised with the OHS committee - such as the trial of the seats in straddles at Port Botany. Between 1999 and early 2000, the OHS committee reviewed all existing safe operating procedures and the revised procedures were approved by the terminal manager. The revised procedures were first issued in March 2000. 22 In 2001-2002, a safety accountability programme (SAP) was introduced for the terminals and general stevedoring divisions of Patrick Corporation, including Port Botany. This programme was designed to involve all levels of the workforce in the assessment of risks and improvement of safety in the workplace, involving risk and hazard identification, risk assessment recommendations, recommendations for appropriate control measures, development of safe work instructions and continual assessment of activities and control measures. In 2004, three further objectives were added to the SAP at Port Botany - emergency and security arrangements, environmental management and safety related training. Once formal documentation of the process was authorised, the programmes were placed on a database and were accessible by all businesses within the terminals division. Employees involved in the SAP were trained in the process generally, but particularly in respect to their function within the process. This training was given to employees who were to be involved as part of risk assessment teams (RATs). The process for SAP/RATs involved managerial and non-managerial employees identifying and assessing hazards and risks and recommending controls. Management determined what controls were to be used. There was assessment by way of a quarterly audit and trained facilitators. 23 Between late 2000 and early 2003, three corporate policies relating to OHS were issued which applied to Port Botany's operations. In addition, there were 9 divisional OHS-related policies and procedures applying at the terminal in addition to the OHS policy and the return to work programme. In January 2003, a "dedicated return to work position" was created at Port Botany: the person employed to fill the position had a background in workers' compensation and rehabilitation administration. Responsibilities of the return to work co-ordinator included monitoring the first aid book, co-ordinating access to and treatment from a range of healthcare providers for employees, developing return to work plans for injured employees and identifying suitable roles or opportunities for injured employees to enable them to return to work on modified and suitable duties. 24 Since the introduction of the return to work co-ordinator, there had been a reduction in the number of lost time injuries at Port Botany both generally and in relation to straddle drivers. The return to work co-ordinator, with the assistance of others, monitored the first aid book to ensure employees' treatment and rehabilitation needs were identified and addressed appropriately, that all incident entries were covered by an incident report and, if necessary investigated, and that the alleged causes of injuries leading to entries were correctly identified. Where there were alleged strain injuries due to straddle driving, the co-ordinator will follow up entries in the first aid book to ensure that employees were performing their exercises, were aware of the physiotherapy, massage, nutrition and exercise services offered by the defendant. 25 Mr Bilston then spoke about the induction programme and the documents provided to new employees. The induction programme consisted of 16 modules, a number of which dealt directly with safety issues. One of the induction programmes provided information to help prevent back injuries and to relieve stress. More informal OHS instruction and training was delivered via toolbox talks which were informal 5-10 minute talks with employees raising OHS issues relevant to the work to be performed on that shift or by the team. Toolbox talks were usually conducted daily, but not as a rigid requirement. It was also emphasised by Mr Bilston that the current and proposed budgets for OHS-related matters was in excess of $1m for the terminal. 26 In May 2004, in addition to the OHS committee, a straddle driving consultative group was formed, consisting of management and employee representatives to address OHS issues associated with straddle carrier operations. The consultative group was formed in accordance with initial steps set out in the document "Safe Straddle Driving - 10-point Plan", and was considering the remaining points of that plan. The consultative group operated independently of the OHS committee, although there were established lines of communication between the two bodies and some dual membership. During May and June 2004, members of the consultative group conducted workforce briefings for straddle drivers at the terminal. Earlier, from late 2000 to early 2001, the national training manager (Mr Giesler) reviewed the contents and format of the driver training manual and developed a new training handbook. Since the charge period, the handbook had been updated to include a training unit specifically aimed at providing information in relation to seat and steering column adjustments to ensure personal comfort, as well as light stretching exercises relevant to straddle driving. A further review of the training material was undertaken in approximately 2003 and some adjustments made to that material. From July to September 2001, a series of straddle training and information centred sessions were delivered to straddle drivers at the terminal and the light exercise booklet reissued to drivers. Mr Bilston said that 204 straddle drivers attended at least one of those sessions. There was also straddle refresher training which had been provided since mid-2003 and generally delivered to groups of between 10 and 15 straddle drivers per session. 27 In relation to straddle seats, from early 2004 until April 2004, a further straddle seat audit and refurbishing programme was commenced by the defendant. Particulars of items to be reviewed during the audit were developed by the OHS committee. In the course of the audit, all straddle seats were inspected, as a result of which 7 seats had been replaced with new seats and others repaired as required. Samples of seats in both the fifth and sixth generation straddle carriers in operation at the terminal were installed in the training room between February and March 2004 to allow employees to be exposed to them and become familiar with their operation during training. In April 2004, all straddle drivers were required to attend straddle seat adjustment instruction. A trial of a new seat "pedestal" was currently being undertaken at Port Botany: the pedestal provided a new seat height adjustment mechanism and had a swivel feature and security straps to enhance security and allowed the seat to swivel 40 either way. That seat was installed in a straddle carrier in June 2004 and had generally been regarded by the drivers as an improvement. There were some comments that the height adjustment did not cater for all sizes of drivers. The trial had been initiated by the straddle consultative committee. Maintenance continued to be provided, although a new maintenance provider had been engaged since November 2003. The nature of maintenance services, however, remained essentially the same. 28 The 2001 certified agreement expired in September 2004, and a new agreement had been approved. Mr Bilston stated that under the new `agreement there were further opportunities for formal breaks from straddle driving so that in yard operations there were three breaks of 30 minutes each, with two of the breaks providing relief from all duties and the third being an "other duties break", where the drivers were expected to perform any other work than straddle driving. The shift start times were to be staggered to enable continuous operation and "work where required" employees were provided to supplement straddle carrying operations during the 30 minute break period. In relation to vessel operations, there was a single break of 45 minutes' duration for drivers and the operations would be non-continuous to allow the break to be taken by all drivers at the same time. Work where required employees would provide a 20 minute driving relief period for straddle drivers within the team and the maximum driving time without a break for the work where required employees was not to exceed two hours. During relief time, the straddle operators were to take up other duties as determined by the shift manager. Mr Bilston said that the effect of the proposed rostering arrangements for yard operations was such that the maximum continuous driving time for each straddle driver in a normal shift was less than two hours, with a total maximum driving time of 6-1/2 hours. 29 Apart from the incorporation of stretching exercises in the training of straddle drivers, the defendant used newsletters and notices to remind drivers of the need to carry out exercises. A personal trainer was engaged to attend the terminal five times a week to offer advice on nutrition and exercise to those employees who wished to avail themselves of that service. On average five drivers attended each session. The physiotherapy and massage service was provided for between four and nine days per month with between 28 and 49 consultations available. Employees also had access to five off-site services. The Stretch Now plan proposed to be introduced in 2003 did not go ahead because of Mr Caple's advice that mandatory stretching could result in creating or increasing stress levels in operators in creating a sense of frustration. 30 The defendant continued to look at automated and semi-automated straddle carrying after what was regarded as a successful trial at Fisherman Islands in Brisbane. In relation to pavement repair, the defendant had, in 2003, spent approximately $800,000 on pavement repair and replacement and for the first eight months of 2004 had spent a further sum of $1.687 million. The method of patching the pavement had become systematic and a "predictive pavement management repair system" was introduced about July 2004 encompassing routine and ongoing maintenance of the pavement surface. This was an initiative of the consultative group under the pavement management system process. Employees undertook weekly inspections of the pavement at the terminal and identified areas in need of repair. A major pavement refurbishment programme commenced in July 2004 and was to continue throughout the terminal over the following 24 months. The approximate cost of the first phase of this refurbishment programme was $6.5 million with a total cost to be approximately $41.7 million. In addition a new type of pavement was being introduced which was said to be more rigid than other forms and therefore less susceptible to rutting. 31 Mr Bilston commented on the statements of drivers submitted by the prosecutor. In relation to Mr Hargreaves' statement, two of the drivers who had been terminated had incurred injuries in and around the straddle other than repetitive strain injury. In relation to Mr Howlett, he had suffered an injury to an ankle when climbing down a straddle ladder and had taken some time off work: he had also taken time off because of an aggravation of a tennis elbow injury first reported in April 2003. At the end of August 2004, Mr Howlett was deemed fully fit and returned to work on 1 September 2004. Mr Watson had been involved in three return to work programmes from June 2004 to September 2004 and had since been assessed as fully fit to return to work. 32 Further detailed evidence dealing with the defendant's training regime was given by the National Training Manager, Mr Giesler. All the equipment training programmes, including those dealing with straddle driving, were being updated in accordance with national accreditation standards. All equipment training was competency based and was not dependent on a trainee completing a specified set number of hours of training: the generic format of each training programme was based on the operational time typically required for a trainee to achieve the competency skills associated with equipment operation. Training records were initially dealt with manually but an electronic data base had been developed between 2000 and mid-2002. 33 Mr Geisler had been involved in induction training of operational employees at Port Botany and Darling Harbour. In 1999 there were five modules of material, one specifically dealing with occupational health and related policies. Every person received a trainee manual, a copy of the current industrial instrument, which was the then 1998 enterprise agreement, a motor booklet and a safety code booklet produced by the Federal Advisory Committee on Waterfront Accident, Prevention and Occupational Health. The manual handling component of the induction course included material and information to help prevent back injuries and to relieve stress and also contained information on the effects of bad posture and "rules for stretching" for equipment operators. In 2001, in recognition of work changes brought about by the 2001 enterprise agreement, the induction training programme was reviewed and rewritten. Under the new agreement, supplementary or permanent guaranteed employees were required to work at different sites and perform a mixture of terminal or general stevedoring operations such as could lead to an employee being allocated work one day at Port Botany as a terminal operator but the next day being allocated to work at Darling Harbour, a general stevedoring operation. 34 The defendant now engaged all new employees as "supplementary employees" and a new three day training course was introduced with 16 specific modules. A number of those modules dealt with occupational health and safety, manual handling, accident prevention, safety and regulations, dangerous goods, site occupational health and safety policies and procedures and ship safety and cargo work. The manual handling component of the induction programme was also used as a stand alone training programme for refresher courses on manual handling issues when required. Part of the manual handling module involved a CD-DVD entitled "Lifting and Carrying" produced by Safety Care Australia Pty Ltd which contained a section providing information on back injuries and the role of the spine. After mid-2002 the induction programme also dealt with the safety and accountability programme (SAP). From mid-2004, a further review of the induction programme was commenced in anticipation of further operational changes flowing from the 2004 enterprise agreement. The final content and structure of that amended programme was yet to be finalised. 35 The training of straddle drivers did not require external or WorkCover authorised certificates and such training had been conducted internally by the defendant. Equipment training was generally delivered by operational employees who had nationally accredited qualifications as trainers. Since February 2003, equipment trainers in the terminals division were required to have the relevant experience as set out in the trainers, assessors and nominated qualified person duties/qualifications/experience procedure. In 1998, the straddle training programme consisted of three components: theory component, practical component and an assessment component. Theory component was designed to be delivered by a course leader and the practical component was to be delivered by workplace trainers. The training programme had initially been developed by a consultant. In late 2000 and early 2001, a condensed updated training handbook was being developed and that task was concluded in 2002. The handbook contained a copy of the light stretch exercise booklet developed for the defendant by Risk Management International. A copy of the booklet was also included in other equipment and handbooks such as the handbook for forklifts. 36 In 2003, all training programmes and systems were reviewed and modified. During the training programme, information was provided in relation to seat and steering column adjustments and stretch exercises including the purpose of those adjustments and stretches. The handbook referred to generic seat adjustments typically found in straddle trucks and suggested light exercises to be undertaken by an operator. Specific seat adjustment was dealt with in the training course using actual seats from various generations of straddle carriers. This occurred in February/March 2004. Mr Geisler said he was again in the process of reviewing all equipment training material including the straddle training material to ensure that the information was consistent with the way in which the equipment was used in practice. All the training material was now able to be accessed by computer. 37 Mr Eldred was the General Manager, Risk Management for Patrick Corporation and had responsibility across all of Patrick Corporation 's wholly owned businesses. Patrick Corporation employed over 4000 persons nationally through wholly owned companies and in recent years had grown "very significantly". The structure of Patrick's was explained and the defendant was described as a wholly owned subsidiary of Patrick Corporation and the employing entity of stevedoring employees working at the terminal and general stevedoring divisions. Mr Eldred was Patrick Corporation's most senior Safety Health and Environment (SHE) manager and there were designated risk/SHE managers in all Patrick Corporation divisions except for some smaller divisions. Most business units within divisions also employed SHE/Occupational Health and Safety Co-ordinators. Mr Synnott was the National SHE manager for the terminal divisions and Mr Moutevelis was the occupational health and safety co-coordinator at Port Botany Terminal while Ms Lewis was the Return to Work Co-ordinator at Port Botany. Mr Synnott reported directly to Mr Eldred and also had reporting responsibilities to the terminal's General Manger. The budgeted amount for SHE related expenditure, including salaries and wages of SHE employees training in SAP in the terminals division, for the year 2003-2004 was approximately $3.5 million. The amount budgeted for the 2004-2005 year was approximately $3.8 million. 38 Mr Eldred had responsibility for establishing a corporate SHE management system across the Patrick Corporation as the various businesses within Patrick had previously managed, to a large extent, autonomously, their own occupational health and safety system. The aim was to establish a system which defined the minimum requirements for SHE management systems, facilitating a consistent approach, providing an auditable criteria for SHE management and assisting each division and business unit to improve SHE performance. The general managers of each division and business unit managers were responsible for SHE compliance and performance. The introduction of the SHE framework required divisions and business units to review existing SHE management practices and where necessary upgrade, enhance or modify the management's system to align with the key elements of the SHE framework. New business acquired by Patrick's Corporation were required to have their existing occupational health and safety systems aligned with practices and requirements of the SHE framework. Each business was required to review their safety performance on a monthly and annual basis and a statistics reporting process had been used since late 2002 to assist in monitoring safety performance. Since March 2003, consideration of a division or business unit SHE's performance had been incorporated in the performance appraisals of the general managers and managers. Safety performance was measured by the lost time injury frequency rate being an internationally accepted measure of risk. 39 In April 2004, Patrick Corporation introduced an interactive computer based training package for senior, corporate and divisional managers dealing with corporate governance including occupational health and safety. Approximately 150 managers successfully completed this training by the end of July 2004 and a further 100 lower level divisional managers were scheduled to complete the training by the end of October 2004. The training package was undergoing further development and was to be available by the end of the first quarter of 2005. From October 2004 each business unit manager would be required to submit an SAP annual status report verifying the status of SHE compliance. Each business was also required to develop a SHE plan that identified safety performance targets with an emphasis on achieving continuous improvement in safety performance. 40 Mr Eldred also dealt with the development, through specialist risk management consultants, from May 2002, of the safety accountability programme (SAP) and the use of risk assessment teams (RATs). He stated that it was intended that every 12 months risk assessments conducted under SAP would be reviewed to determine whether identified controls and corrective action had been implemented while quarterly reviews were conducted to ensure that the process was being followed and each business unit was rated accordingly. Timeframes for correction action sometimes had to be adjusted because of the nature of the task. 41 In August 2003, members of the MUA had approached management about ongoing safety concerns associated with straddle carrier operation at the terminal. This ultimately led to the formation of a consultative committee consisting of representatives of Patrick Corporation and Port Botany management as well as terminal employees and the MUA. Ultimately, a straddle driving review group was established and a former senior deputy president of the Australian Industrial Relations Commission was requested to act as a mediator for the group. Mr Eldred dealt with numerous meetings which preceded the development of the "safe straddle driving-ten point plan". The purpose of the ten-point plan was to ensure that safety issues arising from straddle carrier operations were identified and addressed in a comprehensive transparent and integrated manner. Each of the ten items in the 10 point plan was described as being "essentially a sub-project". THE SUBMISSIONS 42 Both parties filed detailed written submissions on the issue of an appropriate penalty. Each submission was supported by considerable evidence and thus continued the approach of the parties in these extraordinarily hard fought proceedings. 43 The prosecutor's submissions commenced with an "overview", setting out what was submitted to be the correct approach to this sentencing exercise and drawing attention to the provisions of the Crimes (Sentencing Procedure) Act 1999. It was pointed out how the defendant had in its possession information which indicated the existence of the risk of repetitive strain injury prior to the charge period which commenced in October/December 1998. Apparently successful injury management plans were implemented for individuals, without any consideration of the entire workforce. Some of the defendant's early responses by way of memoranda and instructions occurring in 1999 were, nevertheless, some 12 to 18 months after the need for instruction arose. The defendant's response to the growing evidence of repetitive strain injury was slow, lacked commitment and was at best piecemeal. The remedial steps ultimately taken by the defendant in fact demonstrated the simple steps that could have been taken much earlier to address the recognised and demonstrated risk. 44 In relation to the two information, instruction and training charges to which pleas of guilty had been entered, the prosecutor submitted that these charges had been brought by specific reference to s 15(2)(c), namely, that an employer contravened the section by failing to provide such information, instruction training as was may be necessary to ensure the health and safety at work of the employer's employees. Thus, the thrust of these charges was that desirable layers of safety together with secondary measures were required to protect employees in relation to the extent of the danger. 45 The prosecutor raised the prospect that s 51A of the Act could come into operation either because of the two earlier pleas which would lead to the remaining three matters being approached on the basis that the maximum fine in each case was $825,000. In the alternative if a separate fine was imposed in each separate matter then following the pronouncement of the first sentence each following matter would be a subsequent conviction and again s 51A would apply and the maximum penalty for the remaining four matters would be $825,000 in each case. If this approach was taken the principle of totality would apply. 46 It was next submitted on behalf of the prosecutor that these offences were of the worst type of case falling within s 15(1) of the Act and therefore deserving of the maximum penalty. It was said that there were particular features of very great "heinousness" with no real mitigating facts reducing the seriousness of the offence. In the alternative it was submitted that the offences should be assessed at the higher end of the range. In assessing the seriousness of the offence a number of matters were said to be relevant. As to the facts constituting the offences it was relevant they were committed over a period of time in which the danger was unchecked by the defendant whereas there was no similar difficulty under the previous system of work and that the offences were objectively foreseeable and actually foreseen by the defendant. Relevant facts concerning the consequences of the offence were the potential and actual injuries to victims over the two year period of the system of work charge and extended beyond the charge period, the fact that the offences were committed with "callous indifference" to the health and safety of employees and that there was a breach of trust by the defendant as an employer. The reasons for the commission of the offences was also relevant and included the defendant's pursuit of its goal of achieving world class productivity, the fact that the defendant proffered no excuse or explanation for its delays in acting; and the claim of ignorance by the defendant's management of the injuries amounted to a serious aggravation of the offences. 47 The prosecutor submitted that the evidence proved "premeditation and planning" by the defendant to depart from what it considered was the previous safe system of work before the 1998 enterprise agreement became operative increasing driving time and reducing opportunities for job rotation. There were three reports in the hands of the defendant prior to the charge period dating from September 1995 through to January and September 1998 identifying the risks of adopting extreme postures and repetitive movements while driving. The defendant was fully aware of the risks but was prepared to take those risks in order to achieve productivity gains. Further during the charge period five reports were received by the defendant and its own records showed injuries being suffered and medical treatment administered. Towards the end of the charge period and afterwards the defendant adopted a number of methods to address the risk: in August 2000 physiotherapy services were introduced for the drivers and in November 2000 a booklet was issued containing an exercise and stretch programme. Since July 2001 the defendant encouraged drivers to undertake stretch exercises and move around the cabin when there was a short break during the shift. The September 2001 enterprise agreement introduced a straddle relief driver for both yard and ship operations effectively giving straddle drivers in the yard a 20 minute break. The Court had found that there was nothing in the evidence however that demonstrated that the defendant structured, imposed or enforced a system of small breaks in order to ensure that the drivers did not succumb to repetitive strain injury nor did the defendant require the breaks be used for exercise, change in posture or in any other way designed to relieve muscle stress. In the circumstances these were serious offences because appropriate measures were not taken even though such measures were available and feasible: the availability of simple and straightforward steps to remedy the defects in the system indicated the seriousness of the offence. 48 It was said to be significant that the Court made findings that individually named employees had actually suffered injury during the charge period as a result of driving straddle cranes. Mr Hargreaves as at August 2001 had been assessed as suffering approximately a 15 per cent overall permanent impairment of the neck being four-fifths due to the nature and conditions of straddle work and 5 per cent overall impairment loss of efficient use of the right arm at or above the elbow as a result of the nature of his work in general. In July 2004 Mr Hargreaves had been assessed with permanent personal impairment of the neck at 7 per cent including a 2 per cent impairment for impaired activities of daily living. That disability was said to occur as a result of the nature and conditions of straddle work between early 1999 and December 2002. There was evidence that the nature of the injuries continued after the charge period. Besides the named drivers who gave evidence the records showed that some 18 straddle drivers had suffered a form of injury while performing this work and at least one driver was unable to return to pre-injury duties as a straddle driver and terminated his employment. 49 The callous indifference of the defendant to the health and safety of its employees was said to be demonstrated by the evidence that it did not release to the employees medical reports it had obtained as a result of a 1999 request for the medical examination of straddle drivers. In 2001, the defendant had failed to provide the medical reports to any of the four employees involved nor had the reports been supplied to the Occupational Health and Safety Committee at Port Botany. The defendant had informed the employees that the requirement that they be examined by a doctor nominated by the company was part the defendant's ongoing commitment to safe management at Port Botany and was part of its risk management programme for the operation of straddle carriers. Other examples cited were the failure to respond to employees' requests for alternative work or a rotation based on medical advice, particularly in relation to Mr Hargreaves. The defendant, through Mr Bilston, also gave evidence that there was a time when the policy of providing no light work was enforced and the drivers were told to stay off work until they were fully fit. 50 In this case there was a need for a significant element of the penalty to reflect general and specific deterrence. The defendant was a significant employer that was in possession of information alerting it to the risk of repetitive strain injury yet that material was ignored. The penalty imposed should deter this type of approach from other employers. In relation to specific deterrence the steps, somewhat reluctantly and definitely belatedly taken by the defendant to address the risks, did little to assist the defendant in the area of specific deterrence. In relation to the two pleas of guilty the lateness of those pleas coming at the end of the prosecution case could properly attract no discount. 51 The material filed on behalf of the defendant did not demonstrate in any real sense or at all acceptance by the defendant of its responsibilities in relation to occupational health and safety as highlighted by these charges. It was submitted that there was a serious question as to whether the defendant had shown remorse or contrition and was able to have that element taken into account as a mitigating factor.

The prosecutor also sought a moiety (50 per cent) of the penalty having regard to the fact that the prosecutions were brought by Mr Coombs on the authority of the MUA and in furtherance of the union's commitment to securing workplace safety for its members. It was submitted that the usual practice of the Court was to order a moiety of the penalty and that a departure from that practice would require the existence of special circumstances. Lastly in the absence of agreement as to costs the prosecutor sought a specific monetary amount be ordered because of what was perceived to be a gap in the legislation and Court Rules to allow costs to be assessed and recovered after sentence had been passed. The parties were to continue discussions on this aspect of the matter. 52 For the defendant it was pointed out that the system of work charge was established only by the Court finding that all of the proposed remedial steps together and in combination would operate to ensure the health and safety of employees. The two plant charges were restricted to a failure to provide seating in the cabin that ensured health and safety and were further restricted to a finding that there was a failure by the defendant during the two charge periods to be able to properly maintain the seat of the straddle. Specifically the Court was unable to relate these charges to general allegations of overuse injuries. The two instruction, information training charges pleaded to by the defendant were limited to the following omissions: a failure to adequately or at all provide information, instruction and/or training in operating posture, in seat adjustment, in steering wheel adjustment and in stretch exercises. 53 The defendant disputed the use that could be made of the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and particularly the way in which that provision was addressed by the prosecutor. The defendant accepted the statement of the High Court as to the purposes of criminal punishment as described in Veen v R (No 2) (1988) 164 CLR 465 and as had been traditionally noted by the Commission in the sentencing exercise citing for example Inspector Christensen v Harnischfeger of Australia [2004} NSWIRComm 131 at [50]. It was submitted that there was little relevance to the jurisdiction exercised by the Commission under the Occupational Health and Safety Act for the considerations set out in s 21A of the Crimes (Sentencing Procedure) Act. 54 The prosecutor's submission that four of the five charges, by virtue of the operation of s 51A of the Act, would attract the maximum penalty of $825,000 in each case was rejected. Specifically the defendant adopted the reasoning of Boland J in Inspector Jones v Supercut Concrete Services Pty Ltd (2004) NSWIRComm 83 in finding that a maximum penalty of $550,000 should apply to two offences arising out of the same factual matrix. The underlying rationale for the additional penalty for the subsequent offences provided by s 51A was the additional deterrence against the prospect of a repeat offence: the prosecutor's approach was contrary to that rationale and in addition worked an obvious unfairness. The unfairness was highlighted by the prosecutor's concession that the five separate charges could have been brought as one consolidated charge. 55 It was accepted that general deterrence was to be taken into account although its role may vary from case to case. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [75] the Full Bench stated that even where an offender demonstrated good character or commitment to rehabilitation the Court may be obliged to have regard to the need for general deterrence and this was particularly so when the offence in question was prevalent in society and represented a serious threat to the community. The need for general deterrence in relation to serious offences under the Act was undeniable. It was pointed out that there was no evidence before the Court to support the conclusion that repetitive strain injuries of the nature found to exist in the present proceedings were prevalent or a serious threat to the community. In relation to specific deterrence, in light of the current operations of the defendant and the steps taken following the charge period, it was submitted that there may be no practical role for specific deterrence in determining penalty. Here, the Court may be satisfied that the risk of re-offending was low or non-existent: such a conclusion was available on the evidence. 56 In relation to the systems charge and the relative seriousness of the offence the defendant pointed out that in dealing with the test of foreseeability it was relevant that the charges brought against the defendant were found to be unusual given the nature of the risk to which the drivers were exposed. The Court had found that in repetitive use/strain cases a range of matters had to be considered before aspects of the work could be linked to the types of injuries reported by employees. In those circumstances the following matters were said to be relevant: not all drivers at Port Botany or even a significant majority of them had suffered the types of injuries alleged by the prosecutor; not all employees at Port Botany were exposed to the same level of likelihood of suffering repetitive strain soft tissue injury; in repetitive strain type injuries an actual detriment to health or an actual injury was required to be demonstrated for the prosecutor to discharge the onus of proof; the nature of repetitive strain injuries are such that it frequently takes time to manifest itself and a combination of measures and approaches to overcome the risk may be required; the task of identifying the actual risk is difficult as robust individual may be less likely to succumb to repetitive strain type injury and in the absence of permanent injury there were usually no objective signs which may verify back and neck soft tissue injury. It was submitted that the prosecutor concentrated on the knowledge of the defendant regarding individual matters gained from reports or from documents dealing with manual handling to argue that the risk was foreseeable. However, nowhere in the material before the Court was there evidence to support the pre-requisites for foreseeability. 57 As to the prosecutor's submission that there were simple remedial steps available to the defendant to address the risk it was noted that the Court had concluded that none of the particularised omissions, by themselves, was capable of ensuring that the risk did not arise but because of the nature of repetitive strain injury a combination of all the matters particularised was required. In those circumstances the prosecutor was in error in focusing upon single aspects of a system and the time when remedial steps were taken. The defendant accepted that there was need for a variety of measures to be adopted in order to meet a variety of potential susceptibilities of drivers and those complexities were reflected in the detailed measures introduced at the Port Botany site by the defendant after the charge period. 58 Dealing with the seriousness of the breaches the defendant noted that the true measure of the penalty lay in the nature and quality of the offence and not merely the result. In this case the Commission had found that not all drivers at Port Botany suffered injuries as a result of the breaches and a review of the evidence demonstrated that the injuries suffered with the exception of Mr Hargreaves were not permanent or were not serious: the injuries did not involve fatalities, losing of limbs, paralysis or substantial ongoing disabilities. 59 The objective seriousness of the two information, instruction and training charges was low. The Court had held that the thrust of all the expert opinion was that a variety of measures would be needed in order to meet the variety of potential susceptibilities of drivers. It was submitted that given the prosecution was based on Particulars identified in accordance with the provisions of s 15(2)(c) of the Act it was meaningless for the prosecutor to allege a worst case based on the absolute liability under s 15(1) of the Act. The 1991 manual handling regulation was irrelevant: Patricks had not been charged with a breach of the regulation and straddle driving did not come within the definition of manual handling under that regulation. 60 The failures found in relation to the plant charges were confined to a failure to properly maintain the seats of the straddle cranes. This was not found to be related to the allegation of overuse injury with the only evidence of an injury actually suffered being that of Mr Watson when he hit a bump in the yard causing the seat suspension to bottom out and causing a jarring of his back. The defendant submitted that it was very active during the charge period in providing maintenance of the seats and there were extensive records in evidence showing the scope of maintenance supplied. There was a maintenance depot and maintenance operators to attend the straddle and it was clear on the evidence that the drivers knew of the availability of maintenance assistance. The evidence also showed that enquiries were undertaken by the defendant to ensure that "state of the art" straddle carriers were purchased and that the defendant had responded to complaints about the seat during the charge period by arranging for a trial of an alternative seat.

61 There were "strong" subjective factors mitigating the seriousness of these offences. The defendant had no prior record in relation to occupational health and safety legislation and it was accepted that a defendant's good industrial citizenship was of importance in the imposition of a sentence. The record was also to be considered in the context of a large workforce with the defendant employing nearly 300 people at Port Botany. The defendant rejected that there was a prior criminal history asserting that a $550 fine was imposed on another entity. 62 The Court had previously acknowledged steps taken by a defendant after an accident to address the risks so exposed and to ensure a safe system of work. There was considerable evidence of the defendant's activities in this regard. The defendant had demonstrated its commitment to occupational health and safety in the workplace not only by its previous good record but by the development of particular programmes at the terminal and throughout the terminal division. 63 In urging the application of the totality principle the defendant submitted that in Pearce v R (1998) 194 CLR 610 at [40] McHugh, Hayne and Callinan JJ held that the punishment to be exacted should reflect what an offender has done and not be affected by the way in which the boundaries of the particular offences were drawn. Further, in Johnson v Johnson (2004) 205 ALR 346 Gummow, Callinan and Heydon JJ emphasised that a trial judge in structuring a sentence should be flexible to achieve justice: [26] ... the joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrence, Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course would usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. 64 The relevance of the totality principle in the present offences was that the prosecutor had brought five charges but conceded that, by operation of s 49A of the Act, all charges could have been brought in one prosecution with all conduct particularised. In those circumstances the defendant would be facing one charge for a breach of s 15. In WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 AR 284 the President, Wright J, commented that a consideration in the application of the totality principle was the availability under the Act to charge multiple contraventions as a single offence pursuant to the provision of s 49A of the Act. In the present case it was appropriate for a single penalty to be imposed on the defendant in relation to these five offences. 65 Another aspect of the application of the principle of totality was that there was considerable overlap in the allegations made in the five charges. In this respect the statement of Street CJ in R v Holder: R v Johnston [1983] 3 NSWLR 245 at 260, was apposite: The principle of totality is a convenient phrase descriptive of the significant and practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetic addition of sentences appropriate for each individual offence separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will re-evaluate in the broad sense the overall criminality involved in the offences and having done will determine what, if any, downward adjustment is necessary. 66 As to costs, the defendant opposed the prosecutor's application for costs, calling for an apportionment of costs in circumstances where the prosecutor had not succeeded on all allegations in relation to charges that were, in addition, pleaded repetitively and unnecessarily. It was noted that the Vice-President, Walton J, in O'Sullivan v Crown in Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at 202 applied Dood's Family Investments v Layne Industries Pty Ltd (1992-1993) IPR 261 in which it was observed at 272: Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge Mathematical precision is illusory and the exercise of the discretion will often depend upon matter of impression and evaluation. 67 In this regard, in relation to the two plant charges, the prosecutor had succeeded only in relation to the failure of the defendant to maintain the seats properly and was not successful in proving the other particulars. Further, the Court had been critical of the over-particularisation of the prosecution case and the prospect that such an approach inevitably led to an ill-defined defence case where wide ranging matters were raised in cross-examination or in evidence generally only to be discarded at the end of the case. DELIBERATION 68 It is appropriate to firstly deal with the prosecutor's submission that up to four of the charges could be dealt with on the basis that the maximum penalty of $825,000 applied. The defendant pleaded guilty to the two information, instruction and training charges after the prosecutor had closed his case and at the beginning of the defendant's case following a significant period during which the proceedings were adjourned. The plea was noted as was the fact that only some of the particulars in each charge were accepted by the defendant whereupon the prosecutor announced that the remaining particulars would be proved. That combination of events left aspects of both charges still on foot and it is not surprising that in those circumstances the Court did not move to record a conviction or otherwise deal with the two charges. The similarity of pleading in all of the matters made it appropriate for all of the charges to be concluded and for the information, instruction and training charges to be dealt with at the same time as the remaining charges. 69 Precisely when a plea of guilty may amount to a conviction has recently been considered by the Court of Criminal Appeal in Regina v Holton [2004] NSW CCA 214. In that case the offender was charged with murder and aggravated dangerous driving causing death but the charges were not pleaded in the alternative. On being arraigned before a judge the defendant pleaded guilty to the aggravated dangerous driving causing death charge and the presiding judge endorsed the back of the indictment to record the plea but otherwise did not record the conviction. The judge had the option of simply noting or recording the appellant's plea but instead went on to state that the accused was convicted of the charge, which he then described in terms of the indictment, and then remanded the offender for sentence on that charge. In circumstances which need not be recounted for the purposes of the present discussion, it became relevant for the Court of Appeal to consider at what point a conviction occurred having regard to conflicting authorities including a number dealing with particular offences where it had been held that the plea of guilty amounted to a conviction for that offence. 70 Grove J (with whom Smart AJA agreed) reviewed the relevant law extensively, noting that in Maxwell v The Queen (1995) 104 CLR 501 at 507, Dawson and McHugh JJ had stated their agreement with the proposition that there could be no conviction until there was a judgment of the court, ordinarily in the form of a sentence following upon the verdict or plea. Further, in R v Tonks & Goss (1963) VR 121 a Full Bench of the Supreme Court of Victoria had stated: A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a 'conviction' ...

That statement had been applied by Gibbs J in R v Jerome and McMahon 1964 Qd R 595 where his Honour observed that the determination might be made "... by imposing a punishment; by discharging a prisoner on his own recognizance; by releasing him on parol; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained". It had been noted in Maxwell (at 507) that the question of what amounted to a conviction admitted no single comprehensive answer and that the answer would depend upon the context in which the question was asked. 71 After considering the authorities, Grove J concluded: 30 The common thread is that a conviction is a final determination by a court of the guilt of an accused person. The position is summarized in this further extract from the joint judgment in Maxwell at 509: Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea. In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 @ 313-314), a plea of guilty is not, in the ordinary course of events, acceptance until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 @ 488: It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. 72 I am satisfied that on a consideration of the provisions of the Occupational Health and Safety Act the majority judgment in Holton is applicable and that there is no "conviction" until such time as the court makes a final determination of the guilt of a defendant.

Consideration is then required of the provisions of the Act: Section 51A of the 1983 Act as amended in sub-section 1 provides: A court that convicts a person of an offence (the current offence) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose an additional penalty in respect of the current offence ...

It is significant that until amended in 1995 the former s 51A was in the following terms: (1) This section applies to proceedings for a second or subsequent offence against this Act which comprises a wilful repetition of the Act or omission which constituted a previous offence. 73 In my view, the 1995 amendment, inter alia, removed the requirement to prove a "wilful" repetition but otherwise remained as a clear deterrent, by providing a higher range of maximum penalty, for a repeat offence whether it was the same type of offence as the previous offence or not. It is also significant that s 51A now talks about the "current offence": this terminology supports a construction that recognises and distinguishes that current offence from some previous offence in a timeframe that puts the employer on notice that if there is another conviction under the Act, then the higher penalty regime may be applicable and in this way the objective of deterrence is achieved. Where a number of charges are brought, especially under the same section, arising out of the same factual matrix and where they could all be pleaded as a single charge, it could not be contemplated that the "current offence" would constitute whatever offence the Court decided to pronounce upon first by way of penalty and that every other offence dealt with at the same time arising out of the same factual matrix would at that very point become a repeat offence. The unfairness of s 51A operating in that fashion and the unlikehood that this was intended by Parliament strongly tends against that construction. (Cole v Director General of Youth and Community Services (1987) 7 NSWLR 541 at 546). 74 The propositions advanced by the prosecutor have been considered by Boland J in Supercut. In that case it was submitted that there were two offences and although the maximum penalty of $550,000 applied to the first offence, the question was raised as to whether the second offence brought into operation the provisions of s 51A and the higher maximum penalty of $825,000. His Honour rejected the prosecution submission that the recording of guilty pleas on an earlier occasion constituted convictions. Although finding difficulties associated with interpreting s 51A of the Act, his Honour did not consider it was the legislature's intention where two breaches were being dealt with at the same time, for the maximum penalty to apply to the second breach where the defendant committed simultaneous offences under s 15(1) and s 16(1) in circumstances where: the defendant had no previous convictions; the offences arose out of the same factual matrix; there was a substantial overlap between the failures charged in the two offences; and, the two offences were effectively prosecuted as one. In addition, his Honour sought to overcome any difficulty with the operation of s 51A by recording the convictions simultaneously. 75 I agree that the underlying rationale for the additional penalty for subsequent offences appears to be one of additional deterrence against the prospect of a repeat offence. In addition, the history of the section (see Saraswati v The Queen (1990-1991) 172 CLR 1, per McHugh J at 21) supports that construction of s 51A as amended. Further, it seems an extraordinary result that, by virtue of the operation of s 49A, where there is more than one contravention of ss, 15, 16, 17 or 18 arising out of the same factual circumstances, it would be open to the prosecutor to included the multiple breaches of the section in one charge, which in the case of the first offender would set the maximum penalty at $550,000, but would increase the maximum penalty for the second and other breaches by simply choosing to institute separate prosecutions. Such a result is unlikely to have been contemplated by the legislature and strongly tends against a construction that would permit such a result. On the construction I favour I therefore propose to deal with all of these charges on the basis that the maximum penalty applicable to each of them is $550,000. 76 I propose to deal with the objective seriousness of the offences by considering each charge because of their different focus, even allowing for the common elements of pleading.

In relation to the unsafe system of work charge, I regard the breach as serious. Prior to the 1998 enterprise agreement and the defendant's requirement to significantly improve productivity at the Port Botany terminal, the defendant had in its hands material that should have alerted it to the possibility of overuse injury to drivers if they were to drive for long periods while consistently adopting extreme postures. The particular design of the cabin should have added to the defendant's concern about the method of driving straddle cranes at the terminal. At this early stage it was not necessary for the defendant to identify the occurrence of actual repetitive strain injury amongst drivers: rather, at this point, the defendant's obligations under the Act were to ensure the health and safety of its employees by being diligent and maintaining constant vigilance to take all practical measures to ensure their health and safety in the workplace. 77 In this case the defendant was moving from a system of work which involved a number of formal work breaks, job rotation and less driving time to a work system which substituted one long break, extended driving time, provided no formal system of rotating duties and introduced a policy of one man per straddle crane. When those very significant changes were being contemplated by the defendant, having regard to the information it held as to the nature of repetitive strain injury, it could reasonably be expected of the defendant to engage in the type of "end to end" ergonomic investigation referred to by Mr Caple. At the very least, when injuries started to be reported in late 1998 and early 1999, it is difficult to understand why the defendant did not thoroughly investigate the growing number of reported injuries even if they were occurring in a minority of drivers. It is not understandable why the defendant did not act promptly to share with the occupational health and safety committee firstly, the reports it had received and secondly, the observations and recommendations of treating doctors and specialists as well as industry experts in relation to individual drivers. 78 I accept that the defendant has introduced a number of changes to its system since 1998 and many of them have occurred since 2001. There is force however in the prosecutor's submission that these changes do not appear to have been part of an integrated plan to address repetitive strain injury while driving a straddle crane and there is a look about these steps which makes them appear as piecemeal responses to the risk and the injuries received by the drivers. 79 It is significant that in the primary proceedings, although the drivers were closely cross-examined and the frequency of postures adopted was questioned together with the severity of the injuries claimed, it was never directly put to any driver that their injury did not exist or that it was otherwise than genuine. In those circumstances it could have been expected that the defendant would move more speedily to address the risk and to do so in the type of comprehensive and integrated way as suggested by Mr Caple. It is of interest to recall that Mr Caple, during his evidence, noted that he had not been called upon to perform his usual task of attempting to identify why and how workplace complaints of strain injury were related to the manner in which the job was performed. His engagement by the defendant was primarily to identify the existence of naturally occurring breaks in the performance of the work which could be used for exercise, stretching and movement so as to address the risk of repetitive strain injury. It is of some concern that at the stage of submissions on penalty, and considering the extraordinary amount of documentation provided to the Court in relation to that matter, there was no clear cut and precise evidence of a thorough going, integrated investigation taking place at the terminal in order to identify, for the drivers' concerned, the reasons why they might be suffering injury to their neck, back and shoulder and how in each case that might be addressed. 80 The defendant receives little benefit by way of mitigating factors in submitting that only a relatively small number of employees were in fact injured or suffered detriment to their health and that only one employee suffered permanent damage of less than 15 per cent to the neck. In the primary proceedings I did accept that the thrust of the expert evidence was that young, strong and robust men may not suffer any or the same degree of repetitive strain injury as older, less fit and less robust men. That fact did not in any way reduce the defendant's responsibility for ensuring the health and safety of those who were vulnerable to repetitive strain injury, especially in circumstances where the defendant's own records were showing that the number of people reporting to First Aid was increasing, albeit, the total number in this class was a substantial minority of the overall workforce. There is still no material before the Court, even after the extensive evidentiary exercises in both the primary and sentencing proceedings, that investigates or offers any suggestion as to why a large number of straddle drivers either suffered no repetitive strain type injury or, at least, any injury or discomfort which they thought worthy of reporting. On the material before the Court the defendant does not appear, even at this stage, to know or understand some of the reasons why sections of its workforce have succumbed to repetitive strain injury while driving straddle cranes but other such drivers have, apparently, not suffered or not suffered to the same extent. 81 I am not able, however, to accept the prosecutor's submission that this offence either alone or in combination with the others, represented the worst class of breach attracting the highest order of penalty nor am I able to accept the description of the defendant's behaviour as "premeditated," "callous" and "heinous". These submissions put by counsel on behalf of the prosecutor lacked the restraint that the Court is entitled to expect from a prosecutor: these submissions struggled for creditability as they groped for an evidentiary basis to support them. There is force in the defendant's submission that these charges are not to be considered as the worst type of s 15 case or at the top end of the scale of penalties in circumstances where there is no evidence of the risk of the loss of life, the loss of limbs or vital organs and almost no evidence of full or partial permanent incapacity. Accepting this position, however, does not lead to a conclusion that the risk exposed and the injuries suffered are unimportant or insignificant - it simply means that these features rank well below the worst type of s 15 case. 82 Notwithstanding the nature of repetitive strain injury and the accretion of discomfort and injury over time, the material in the hands of the defendant at an early stage when this new system of operation was introduced meant that it was in a position to foresee that unless steps were taken to prevent repetitive strain injuries in the drivers then this type of injury could very well occur. I am not satisfied that the evidence demonstrates that the defendant actually foresaw the very types of injuries that were suffered and reported by the drivers even though the defendant was aware that the adoption of extreme postures could lead to soft tissue injury. It was at this point that the defendant had to be active to ensure that instruction and systems were in place that relieved drivers from adopting, for extended periods, these types of extreme postures. 83 I am also unable to accept the prosecutor's submission that there were numerous aggravating aspects of the offences by reference to the considerations enumerated in s 21A of the Crimes (Sentencing Procedure) Act 1999. While I accept that the Sentencing Procedure Act applies to proceedings of this kind, in a practical sense, many of the considerations have little application to proceedings brought under the Occupational Health and Safety Act but, appropriately, gather common law propositions applicable to a wide variety of criminal behaviour. To the extent that the Sentencing Procedures Act has practical application to the circumstances of these offences, its terms have been taken into account but not to the extent urged by the prosecutor. 84 The two plant charges deal with a breach of s 15(1) firstly between December 1998 and April 2000 and secondly, between May 2000 and September 2000. In each case the only Particular upon which the prosecutor succeeded was the defendant's failure to provide seating in the cabin that ensured health and safety. In each of the plant charges the prosecutor referred to the six drivers who were employed by the defendant to operate straddle cranes and the allegation that there was a risk to health, safety and welfare to any or all of the employees and that there was a risk of neck, shoulder, spine, upper limb and/or back injury. The Particulars then detailed injuries suffered by each of the drivers. Two charges were apparently brought rather than one because of the steps taken by the defendant in April 2000 to trial an alternative seat although that seat was not acceptable to the drivers. The prosecutor explained that by bringing two charges, the defendant was able to defend the second charge by reference to the trialling of a new seat. 85 The Court was unable to relate the Particulars in relation to the seat of the straddle carrier to the evidence of overuse injury which was at the forefront of the system of work charge. The medical evidence did not focus upon the various failures in the seat adjustment mechanisms as being causally linked to any repetitive strain injury but the drivers' evidence showed that there was continuing difficulty with the stiffness of the adjustment mechanism of the seats and that there was a constant need for the seats to be sent to the maintenance depot. Mr Watson appeared to be the only driver to give evidence of the seat suspension failing when in February 2000 he hit a bump in the yard that led to a jarring of his back. Mr Watson also had a number of entries in his diary regarding seat problems in the crane and at the same time complaining of a sore back and hip. There were similar types of complaints made by other drivers but not with any great frequency. Primarily it was noted that in the defendant's trainer guide carrying an August 1998 date, bad seating and lack of operator education in the method of adjusting the seat to suit a driver's build had been found to actually accelerate the deterioration of the intervertebral disc. 86 Despite the onsite maintenance provided by the defendant, the seat adjustment mechanism was, early in 1998, identified by the WorkCover Authority as a problem. The evidence showed that the problem continued throughout both of the charge periods and the maintenance provided was not effective in eliminating these adjustment problems. As already indicated, only a small number of actual injuries occurred during the charge period but the risks associated with a seat that could not be properly adjusted for the build of the driver posed a potentially serious risk that was not adequately addressed by the defendant. I am, however, unable to assess that risk as being of the same seriousness and order as the risk demonstrated in the system of work charge. 87 The two information, instruction and training charges cover the period December 1998 to May 1999 and June 1999 to September 2000. Again, the prosecution brought two charges recognising that in June 1999 the defendant had issued a document entitled "Draft Straddle and Steering Wheel Adjustment". The Particulars of these charges that were not pleaded to, repeated the allegations in all of the charges that a number of the named drivers suffered neck, shoulder, spine, upper limb or back injuries and asserted that there was a risk to health, safety and welfare to any or all of the employees because of this potentiality. 88 In pleading guilty to these charges, the defendant accepted that it had failed to provide information, instruction and training in operating postures, in seat adjustments, in steering wheel adjustments and in stretch exercises. The width of these Particulars are capable of encompassing all of the matters established in the system of work charge. If there had been information, training and instruction in relation to each of these matters then the defendant would have been obliged to instruct the drivers to address the frequency of the extreme postures which they adopted during the driving of straddle cranes in order to ensure that there were sufficient breaks in the work to avoid repetitive strain injury. The information, training and instruction would also have had to address the frequency of exercise during periods of driving and possibly after as well as informing the drivers of a possible adverse impact of inappropriately adjusted cabin seats and steering wheels. Once the drivers were properly informed, instructed and trained in relation to these matters they could have been told about the best use of any non-driving time, whether in or out of the straddle crane, to protect against repetitive strain injury or alleviate its symptoms. 89 In Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [58] the Full Bench made a number of observations regarding the obligations on employers to provide adequate training in order to equip employees to safely carry out their work, stating: [58] The extent of and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safety perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such works. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education).

It is well understood that a safe system of work not only involves establishing a regime of work rules than ensures health and safety at work but also in providing the type of information, instruction and training which emphasises the purpose of those work rules and demonstrates the dangers of not following those work rules. These two offences are of considerable significance and in objective seriousness rank close to the system of work offence. 90 There was no suggestion that general deterrence was not to be taken into account in setting an appropriate penalty in these matters although the defendant pointed out that the role of general deterrence may vary from case to case. The Court is in no position to know the extent of repetitive strain injury in the general workforce although the medical evidence suggested that it was not uncommon. The significant factor here is the failure of the defendant to properly act on information it had in its possession as to the risk of repetitive strain injury arising from the driving of straddle cranes and the failure, at an early stage, to inform the Safety Committee of this information as well as to pass on the medical and specialists reports it was receiving in relation to individual drivers. It is important to encourage employers to share this type of information, especially with the workplace Safety Committee thus allowing the problems or potential problems to be considered and investigated from as wide a perspective as possible. 91 In relation to specific deterrence, the defendant continues to employ a relatively large workforce to drive these straddle cranes and there is evidence of continuing repetitive strain symptoms. While a number of measures have been taken that assist in addressing the risk of repetitive strain injury, I am not satisfied that the defendant has yet undertaken a comprehensive investigation of the causes of such injury and the continuing symptoms. Specific deterrence will therefore play a significant role in the setting of an appropriate penalty. 92 In relation to subjective features, the two pleas of guilty were entered well after the prosecution case was concluded but before the defence case commenced. In those circumstances, I am unable to regard that step as an early plea attracting a discount on the basis of its utilitarian value nor was that approach urged by the defendant. Further, the two pleas, in accepting only some of the Particulars, left the remaining Particulars to be proved by the prosecutor. The fact that the remaining Particulars were common to all charges may have influenced the defendant in taking that course and the fear that it may have prejudiced the remaining cases but that difficulty provides no basis for permitting a discount as discussed by the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 93 I accept the significance of the defendant's record and the fact that in its relatively short existence it has not been found guilty of any offence under Occupational Health and Safety legislation. This record stands in circumstances where the defendant is the employer of a significant workforce and, because of the machinery used and the nature of container movements, the workplace can properly be described as one with inherent dangers. The defendant also points to the numerous steps taken over the last four years to address the possibility of repetitive strain injury amongst straddle drivers. While those steps should be acknowledged I have earlier observed that those steps do not appear to be part of a coherent and concentrated programme to establish causes of repetitive strain injury in this workforce and address it both on an individual and total workforce basis. A number of proposed approaches, such as automated crane movements and the Stretch Now programme, have not been implemented and the evidence is that despite the steps taken by the defendant some employees continue to demonstrate repetitive injury symptoms although the extent of that is far from clear.

94 Having regard to those matters, I would impose the following penalties treating each offence separately: (a) In Matter No IRC 5194 of 2000 - $100,000 (b) In Matter No IRC 6105 of 2000 - $35,000 (c) In Matter No IRC 6104 of 2000 - $35,000 (d) In Matter No IRC 6102 of 2000 - $70,000 (e) In Matter No IRC 6103 of 2000 - $70,000 95 I have been invited by the parties to apply the principle of totality and I concur in that approach. The Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 dealt in detail with the proper approach to the application of the totality principle, stating: [21] ... There was a well-established practice in New South Wales that when structuring sentences for multiple offences the trial judge could impose one sentence which represented the totality of the overall criminality involved in the offences. It was not considered necessary to consider each sentence separately to ensure that it appropriately represented the criminality involved in each particular offence: ... [22] In Pearce v The Queen (1998) 194 CLR 612, however, the majority of the High Court rejected this approach. That case concerned an offender charged with two offences - the malicious infliction of grievous bodily harm and the infliction of grievous bodily harm during a break and enter - which both arose out of the same incident. The majority, McHugh, Hayne and Callinan JJ, stated: [45] To an offender, the only relevant question may be 'how long' and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (emphasis added). [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to a particular offences. (References omitted, emphasis added). [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. [24] The approach in Pearce has been applied on a number of occasions by the Court of Criminal Appeal: see, for example, R v Kalache [2001] NSWCCA 2, at [106] to [111]; R v Wheeler [2000] NSWCCA 34 at [34] to [37]; and Giam (no 2) (1999) 109 A Crim R 348 at 351. 96 In Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 703-704, the Court of Criminal Appeal adopted the statement of principle made by Street CJ in Holder's case regarding totality: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which will be arrived at by a straight-forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. 97 In these charges, the multiple offences did contain common elements: each offence was brought under s 15(1) and each offence was substantially particularised in the same way by reference to the drivers employed and their injuries over a period of time. The plant and instruction charges were split in recognition of steps taken by the defendant while maintaining the inadequacy of these steps. The Court therefore has to be careful that the defendant is not punished more than once for the common elements of the offence and to avoid double jeopardy. In the present cases, the prosecutor conceded during addresses that the five separate breaches could have been pleaded as one charge by virtue of the provisions of s 49A of the 1983 Act. That concession is heavily relied upon by the defendant but needs to be put in the context that the five separate charges deal with three quite separate aspects - the system of work, the plant and the method of information, instruction and training. Each of these aspects, even if pleaded as part of a single breach, had the capacity when proved, to add to the seriousness of the offence and the culpability of the defendant. 98 Although the prosecutor pursued five separate breaches of s 15 of the Act, his counsel was at pains from the very beginning of the case to point out that the prosecutor sought to establish a single criminal activity or enterprise during the respective "rolled-up" offence periods. Further, it was submitted that in the circumstances of the present case it was legitimate for the prosecutor to charge in each "rolled-up" charge one activity even though that activity may involve, internally, more than one act, failure and/or omission. Indeed, it was submitted that the acts, failures and/or omissions or the objective facts causing the detriment to safety, or both, could fairly and properly be regarded as forming part of the same transaction or the one criminal activity, namely, a continuous stevedoring operation exposing employees to the risk of overuse injury. The acts, failures and/or omissions or the objective facts causing the detriment to safety, or both, were connected with one another in the time and place of their commission, namely, the continuous stevedoring operation at Port Botany. The case was to focus on the risk to health, safety and welfare of the defendant's employees and there was a risk of neck, shoulder, spine, upper limb and/or back injuries being "overuse" injuries. The evidence was designed to establish a pattern which emerged from a consideration of all of the charges and it was submitted that the individual acts one by one did not reveal the true, or overall, culpability and criminality of the defendant. 99 While there was a separate focus for the charges, they were all capable of being brought as Particulars of a system of work charge. The approach of the prosecutor was to deal with lack of job rotation, formal breaks, insufficient manning and exercise in the system of work charge, then focus on the inadequacy of the seat and other attributes of the cabin in the two plant charges and finally to deal with the lack of information, instruction and training in the operation of the plant and in the way in which the work was performed with inadequate breaks, exercises and manning. To the extent that there is an overlap in the separate charges, the Court is required to exercise great caution in setting a penalty which does not have the effect of penalising the defendant twice for the same conduct. 100 Bearing those matters in mind, in the application of the totality principle, I conclude that the aggregate figure of $310,000 must be reduced to $115,000 to reflect appropriately the overall criminality of these charges. That figure will be reflected in individual penalties as follows: (a) in relation to Matter IRC 5194 of 2000 - $37,300 (b) in relation to Matter IRC 6105 of 2000 - $12,950 (c) in relation to Matter IRC 6104 of 2000 - $12,950 (d) in relation to Matter IRC 6102 of 2000 - $25,900 (e) in relation to Matter IRC 6103 of 2000 - $25,900 101 The prosecutor sought moiety of the penalty arguing that this was the usual course adopted by the Court in matters arising under occupational health and safety legislation. The defendant did not wish to be heard on that matter. The prosecutor pointed to the provisions of s 122 of the Fines Act 1996 as being applicable in this case. The section applies where the Act imposing or authorising the imposition of a fine or other penalty does not make any provision for its application when recovered and where the prosecutor is not a police officer. In those circumstances, the court before which proceedings are taken to recover any such fine or other penalty "may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor". 102 The prosecutor cited an unreported judgment of Bauer J in 1994 setting out the appropriate approach when dealing with an application for moiety by the prosecutor. In WorkCover Authority of New South Wales v Warra Ridge Pastoral Co Pty Ltd [1994] NSWIRComm 104 (23 September 1994), Bauer J considered the legislative basis for granting a moiety of the penalty to a WorkCover inspector. Amongst other things, his Honour noted that the WorkCover Authority had been established as largely a self-funding body and the statutory role of that body to investigate workplace accidents and to commence prosecutions for breach of the Occupational Health and Safety Act. His Honour traced the meaning of the word "moiety" to establish its meaning as one-half of the penalty and how various statutory provisions had allowed an amount of the penalty to be made available to a prosecutor who was not a police officer. In traversing the historical material, Bauer J referred to an unreported judgment of Hungerford J in Kirkby v A&MI Hanson Pty Ltd (CT 1121 of 1993) dealing with the issue of penalty. In the course of that judgment, Hungerford J referred to an amendment in1933 to the Fines and Penalties Act 1901 and the Second Reading Speech of the then Minister for Justice in the following terms: The Fines and Penalties Act provides that in a large number of cases half the penalty or fine shall go to the informer. Under this Bill it is proposed that where an Act makes no provision to the contrary the matter shall be left in the hands of the Magistrate who, if he sees fit, may make an order for the penalty or any part of the penalty up to one-half to go to the informer - that is - the prosecutor, or he may make no order at all. 103 Bauer J appeared to be significantly influenced by the past practice of the Industrial Court under the Occupational Health and Safety Act as well as the process adopted by the Chief Industrial Magistrate in prosecutions under the Factories Shops and Industries Act 1962. Some of the provisions permitted the payment of a moiety and others, for instance, under the Industrial Arbitration Act 1940, were such that where a penalty had been recovered upon a complaint or information of the secretary or other officer of an industrial union or an Association registered under the Act, the Commission or other Magistrate could order that the penalty or any part of it be paid to the Registrar and by him paid to such union or Association. His Honour had consulted with the Chief Industrial Magistrate who confirmed that the practice had been to allow the prosecuting party the fine levied but not always the total amount of the penalty. His Honour concluded that it may well be said that the principle of the payment of a portion of a penalty recovered for breaches was an integral part of the industrial regulation of the State. His Honour continued: It appears that the exceptional case has historically been where a moiety was not accorded and that the discretions provided by the legislation were introduced to give the Tribunals power to refuse an order and to give the Governor-in-Council powers to remit fines and penalties where moiety had been ordered (see discussion in Kirby v A&MI Hanson Pty Ltd). Having regard to the historical background of the right of the prosecutor to have a portion of the fine recovered, the practice of this Commission and the reason for the granting of moieties, I am of the view that the exceptional case would be where the prosecutor was not accorded a moiety and that the explanation for the discretion which is found in current legislation was to meet specific mischief explained on the passing of the legislation. Consequently, in my view, a moiety of fines levied under the Occupational Health and Safety Act would in the usual case be accorded to the prosecutor unless good reason be otherwise shown, either as to cause or amount. 104 In the Warra Ridge Pastoral Co Pty Ltd case, Bauer J was, of course, dealing with a prosecution brought by a WorkCover inspector and in the course of reaching his conclusion had regard to the nature and purpose of the WorkCover Authority. In O'Sullivan's case, Walton J, Vice-President, stated: Having regard to the decisions in Kirby and A&MI Hanson and Warra Ridge, and the established practice of this Court, I agree with the prosecutor's submission, that in the absence of any compelling reason not to order a moiety, or to limit the amount of such moiety, the usual case is that the Court's discretion to order an moiety is exercised in favour of a prosecutor. I am satisfied by the evidence before me that an important function of the PSA is contributing to the prevention of injuries and promotion of health and safety in the workplace, and that the PSA commits a significant amount of time and resources to this function. Further, I accept the evidence of Mr Cahill, Acting General Secretary of the PSA, in relation to the matter in which any funds received by way of a moiety would be dealt with by the prosecutor, and in turn by the PSA in relation to the maintenance and promotion of occupational health and safety at the workplace. 105 In the present case, Mr Coombs is the secretary of the Central New South Wales Branch of the Maritime Union of Australia (the MUA) and the MUA is an industrial organisation of employees registered under the provisions of the Workplace Relations Act 1996. He stated that he initiated the proceedings in a representative capacity on behalf of the MUA and its members in circumstances where the WorkCover Authority would not come forward to deal with the repetitive strain injuries or over use or extreme posture, health and safety issues arising from the operation of straddle cranes at the defendant's Port Botany terminal. 106 In affidavit evidence, Mr Coombs said that each officer of the branch performed duties in relation to occupational health and safety including providing direct assistance to workplace delegates and members and by conducting workplace inspections, interviewing members, conducting research and specific occupational health and safety matters and providing written reports to workplace delegates on relevant occupational health and safety issues. Officers attended meetings with employees to resolve workplace safety issues and liaised with WorkCover inspectors in relation to the resolution of safety and welfare issues that could not be satisfactorily resolved with employers. There were investigations of suspected breaches of occupational health and safety legislation including breaches of the Occupational Health and Safety Act 2000. Reports were prepared for the branch executive and branch committee in relation to relevant occupational health and safety matters and suspected breaches of safety legislation and the officers assisted in the development of MUA publications covering policy and guidelines for the membership of occupational health and safety issues. There was also assistance and participation in the development and delivery of occupational health and safety training for MUA delegates and members. Mr Coombs expressed the view that the introduction of new occupational health and safety legislation in New South Wales had placed increasing demands on the MUA and its officers. Part of those demands related to the necessity to train both delegates and members in their rights and obligations under the new legislation. 107 Mr Coombs stated that he initiated the proceedings to enforce the Occupation, Health and Safety Act 1983 for the benefit of the MUA and its members and then noted: The branch executive have not given detailed consideration to how these funds would be spent as we will not know the quantum of that penalty until a judgment has been handed down. If the MUA is granted a moiety in this matter, the executive will need to consider if the monies will be used in relation to occupational health and safety matters, such as training or the funding of a new occupational health and safety industrial training programme. A moiety granted to the MUA arising from this case will assist the executive to determine whether one or more of the options referred to above can be pursued for the benefit of MUA membership in the near future.

Mr Coombs also undertook that any moiety would be remitted to the MUA. 108 It is quite understandable, as found by Bauer J, that an inspector of the WorkCover Authority as prosecutor should normally be ordered to receive a moiety of any penalty imposed by the Court and that it would now be an exceptional case for another course to be taken. It is another matter, however, to suggest that the discretion left to the Court by s 122 of the Fines Act should be invariably exercised by granting a moiety and that some exceptional case would have to be established not to follow that course where the prosecutor is other than a WorkCover inspector. Section 122 no longer speaks of a moiety and in sub-section 2 grants a discretion to the Court to direct that such payment of penalty (not exceeding one-half) is to be paid to the prosecutor. It is interesting to note that in the Second Reading Speech regarding the 1933 amendment, the Fines and Penalties Act was altered so that the previous power of the Court to order half of the penalty or fine go to the informer was to be replaced by a provision where the matter would be left in the hands of the Magistrate "... who, if he sees fit, may make an order for the penalty or any part of the penalty up to one-half to go to the informer - that is the prosecutor, or he may make no order at all". In my view a discretion which must invariably be exercised in a particular manner strikes at the very heart of the discretion left to the Court: that is not to say that a Court would need good reason to depart from what had become its usual course, for instance, the granting of half of the penalty to a WorkCover inspector. 109 In the present proceedings, the prosecutor is the secretary of a branch of a federally registered union and has received authority personally to prosecute under s 48 by virtue of the written consent of the Minister. Mr Coombs' evidence is that the prosecution was brought "on behalf of" the MUA, meaning, it seems, that in applying to the Minister for authority to prosecute Mr Coombs did so in his capacity as branch secretary of the union and on the authority of the union. Indeed, early in the proceedings, Mr Coombs was cross-examined by the defendant and indicated that any costs ordered against the prosecutor would, in effect, be honoured by the MUA. 110 I accept Mr Coombs' evidence in relation to the union's interest in occupational health and safety matters and the fact that, from time to time, the union is involved through its officers in investigating safety breaches advising members in relation to such matters and preparing reports for the governing bodies of the union. That evidence did not attempt an approximate assessment of the time that may be taken by officers in performing such tasks, nor was there any detail given as to the occupational health and safety training undertaken by the union and at what cost. There does not seem to be any clearly delineated occupational health and safety budget in relation to union activities in this area and that fact was highlighted by Mr Coombs' inability to say what the branch executive would do with the funds if a moiety of the penalty was received. Importantly for my consideration, there was no undertaking that the penalty would be applied solely to either specific or general occupational health and safety objectives and activities within the union, together with an identification, with some precision, of those activities. This evidentiary position is to be contrasted with the position in O'Sullivan where the evidence apparently demonstrated the union's activity in relation to the prevention of injuries and the promotion of health and safety in the workplace and how the union had committed a significant amount of time and resources to that function. In addition, the acting general secretary gave evidence in relation to the manner in which any funds received by way of moiety would be dealt with by the union in relation to the maintenance and promotion of occupational health and safety at the workplace. 111 If the evidence is left in its present state, although I am satisfied that a portion of the penalty should be ordered to be paid to the prosecutor to pass on to the union, I would not be prepared to order that the maximum amount, or moiety, being one-half of the penalty, should be ordered to be paid to the prosecutor. As there remained an outstanding issue as to costs I thought it appropriate to give the prosecutor a further opportunity to address the state of the evidence on moiety in light of the issues raised by the Court.

Mr Coombs accepted the Court's invitation and filed a further affidavit in which he outlined steps taken by the MUA in 2003 to obtain a grant of over $90,000 from the WorkCover Authority to undertake a programme to be called "Workplace Assist Programme 2003". This proposed project involved the assessment of training needs in occupational health and safety for MUA officials and employee representatives on worksite occupational health and safety committees and related solely to occupational health and safety matters. The union ultimately advised that it was unsuccessful in its application. Mr Coombs gave an undertaking that if a percentage or moiety of the penalty was granted to the prosecutor that the MUA would apply those funds for undertaking a project of a similar nature and in any event undertook that any part of the penalty granted by the Court would be used solely for occupational health and safety related purposes. In light of that undertaking, I am satisfied that it is appropriate to order that half the penalty be paid to the prosecutor in the same way as a moiety is granted to WorkCover inspectors. 112 In relation to costs the prosecutor sought his costs in a sum to be specified in the order of the Court. The defendant argued that there should be an apportionment of costs because, in the two plant charges, the prosecution had failed to establish a number of the particulars central to the charge and further, the conduct of the prosecutor, in adopting multiplictous pleadings unnecessarily added to the costs. I do not regard this case as being comparable with the situation facing the Court in WorkCover Authority of New South Wales (Inspector Dawson) v Plastichem Pty Ltd (2001) 110 IR 351 or in WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane and Rigging (Aust) Pty Ltd [2004] NSWIRComm 277. In Plastichem the Court was considering the appropriate order where the prosecution case failed. In the Leighton and Lindores' case the Court was considering a position where there was complex cross-pleading criticised by the Court and where the prosecutor had succeeded in one prosecution but failed in a number of other prosecutions. 113 In these matters the prosecutor has succeeded in each of the three prosecutions which were contested and the defendant has pleaded guilty to two charges in circumstances where the particulars which remained in contest were common to all matters and were therefore necessary to be dealt with in the safe system of work charge. Had the prosecutor proceeded with one charge, then the same evidence would have been called and indeed, it appears that the evidence required for the plant and information, instruction and training charges would have been likely to have been called in the safe system of work charge. A costs order should be an order that is just and reasonable in the circumstances of the particular case: ordinarily, in this criminal jurisdiction of the Court, costs will follow the event. In the circumstances of this case, I do not see any reason to depart from that approach nor do I see any merit in an apportionment of costs. 114 Precisely what order as to costs should be made was the subject of submissions. The prosecutor filed and read affidavit evidence from Mr Tyson, solicitor acting for the prosecutor. That evidence set out in detail the steps taken by the prosecutor's legal representatives and the costs associated with them. The evidence also contained correspondence exchanged between solicitors and the Court was informed that there remained a serious issue as to the quantum of the prosecutor's costs. While the prosecutor's evidence appeared designed to demonstrate that something in excess of $529,000 was properly claimed, the defendant filed no evidence as to what it contended was the prosecutor's appropriate costs but in correspondence suggested that the Court be invited to make an order, if it were so minded, of costs in a sum to be agreed or assessed in accordance with the Industrial Relations Commission Rules pursuant to s 252(2) of the Criminal Procedure Act 1986. 115 The prosecutor points to a situation which suggests a good deal of uncertainty surrounds the capacity of the Court to make a general order for costs as agreed or in the absence of agreement, as assessed. A nice question arises whether s 14 of the Supreme Court (Summary Jurisdiction) Act 1967 applies or whether the provisions of the Criminal Procedure Act 1986 applies. The mechanism for assessing costs is complicated by the fact that the Rules of the Court do not make the type of detailed provision which would allow that course and the restricted nature of assessments which may be made under s 202 of the Legal Profession Act 1987. 116 The prosecutor is entitled to some certainty as to whether a costs order made by the Court in its favour is effective and cannot be avoided by the defendant upon some technical point. Up until the closing of submissions as to penalty, there was no suggestion that the defendant was seeking to avoid a costs order if the Court took the course of making a general order so long as those costs could be assessed properly in the absence of agreement. The parties were to continue their discussions to see if an agreement could be reached as to the quantum of costs if the prosecutor succeeded in obtaining a costs order and the matter was reserved with the Court to be informed of the result of those discussions. As reasons for judgment were being finalised, the Court was informed that the parties could not reach agreement on the prosecutor's costs and the matter was re-listed to explore with the parties the appropriate course to take in those circumstances.

Correspondence received from the parties since that time confirms that the defendant will honour any costs order but seeks an arrangement whereby the costs may be assessed in the absence of agreement. The defendant has proposed to the prosecutor that the quantum of costs be provided by way of a bill of costs in taxable form and if the parties were unable to come to an agreement in relation to those costs, then they be submitted to a costs assessor for a determination with both parties abiding by the determination. The prosecutor's position appears to be that costs are not a matter to be agreed between the parties but is a matter for the order of the Court. While the defendant's approach appears to be reasonable, the Court has no material on which to judge the opposition of the prosecutor. In those circumstances, an appropriate order would be a costs order in favour of the prosecutor in an amount as agreed or in the absence of agreement, as ordered by the Court. That order would allow any disagreement to be returned to the Court and, if necessary, any disputed amount to be determined by the Court although that should be a course of last resort and the parties should be encouraged to find an appropriate course that would make that step unnecessary. In the circumstances the order proposed appears to protect the position of both the prosecutor and the defendant.

ORDERS 117 The Court makes the following orders: (1) In Matter No IRC 5194 of 2000 - (a) the defendant is found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 in failing to provide or maintain a system of work that was safe and without risks to health; (b) the defendant is fined the sum of $37,300 with 50 per cent of that penalty to be paid to the prosecutor; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or in the absence of agreement, as ordered by the Court.

(2) In Matter No IRC 6105 of 2000 - (a) the defendant is found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 in failing to provide or maintain plant that was safe and without risk to health; (b) the defendant is fined the sum of $12,950 with 50 per cent of that penalty to be paid to the prosecutor; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or in the absence of agreement, as ordered by the Court. (3) In Matter No IRC 6104 of 2000: (a) the defendant is found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 in failing to provide or maintain plant that was safe and without risk to health; (b) the defendant is fined the sum of $12,950 with 50 per cent of that penalty to be paid to the prosecutor; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or in the absence of agreement, as ordered by the Court.

(4) In Matter No IRC 6103 of 2000 - (a) the defendant is found guilty of breach of s 15(1) of the Occupational Health and Safety Act 1983 in failing to provide such information, instruction and training as may be necessary to ensure the health, safety and work of its employees; (b) the defendant is fined the sum of $25,900 with 50 per cent of the penalty to be paid to the prosecutor; (c) the defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement, as ordered by the Court.

(5) In IRC Matter No 6102 of 2000 (a) the defendant is found guilty of a breach of s 15(1) of the Occupational Health and Safety Act 1983 in failing to provide such information, instruction and training as may be necessary to ensure the health and safety at work of its employees; (b) the defendant is fined the sum of $ 25,900 with 50 per cent of the penalty to be paid to the prosecutor; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or in the absence of agreement, as ordered by the Court.

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.