10 The appendices to the report contained a statement made by Inspector Chilman on the day of the accident, various statements taken by Gosford Police, an autopsy report completed by Dr Godfrey Oettle for the Coroner and an accident report completed by Inspector Johnson for the Department on 8 December 1997.
11 The evidence led by the prosecutor also included a letter from the Department addressed to Mr Hoipo dated 7 April 1995 (two years prior to the accident) and a photo depicting the guarding placed over the conveyor belt. The letter required two modifications to be made to the plant and equipment used at the site, including that the nip points on conveyors should be guarded to prevent injury to personnel. The photo depicted the guarding which has been subsequently placed over the conveyor belt. Correspondence from the defendant's solicitor containing the 1998 Income Tax Return of the defendant was also put into evidence by the prosecutor.
12 The evidence for the defendant included a further series of nine photographs taken during 1995 which show the general positioning of the machinery at the quarry and an extensive statement by Mr Hoipo detailing his recollections of the events surrounding the accident as well as general background concerning the quarry and Mr Hoipo's personal circumstances. A report prepared by Mr Rob Widders of WBM Consulting Engineers Pty Ltd, which presented the results of an assessment of the hand rail of the conveyor system, was also put in evidence by the defendant. Additionally, two personal references for Mr Hoipo were tendered, namely a reference from Mr Warwick David Patton, an acquaintance and business associate, and Mr Andrew John Hirons, a neighbour to the property at Somersby. Amongst other things, both Mr Patton and Mr Hirons made statements concerning Mr Hoipo's conduct as an employer and the affect of the accident on him personally.
Proceedings in relation to penalty
13 It was indicated from an early stage that the defendant would plead guilty to the charge in this matter. When the matter came on for hearing, Mr Hodgkinson, counsel for the defendant, formally entered a plea of guilty on behalf of the defendant. Having regard to the summons in this matter, the particulars of the offence, the statement of agreed facts and the evidence, I am satisfied that the offence has been proven and that the plea of guilty has properly been made by the defendant. A verdict to that effect is entered.
14 There remains the consideration of the appropriate penalty for the defendant. As I indicated in Department of Mineral Resources of NSW (Chief Inspector Bruce McKensey) v Kembla Coal and Coke Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC142 of 1998, 16 August 1999), notwithstanding the plea of guilty, the Court is required to investigate the whole context of the offence in order to determine the objective seriousness of the offence as well as to identify any issues in mitigation or aggravation which should be considered in sentencing.
Evidence in Dispute
15 It is necessary to commence by recording that there were a number of disagreements between the parties concerning the facts of the case. Ms Thompson, counsel for the prosecutor, indicated that there were two broad areas of dispute. Firstly, there was a disagreement on the conclusions which could reasonably be drawn from the evidence as to why Mr Banville was on the platform at the time the accident occurred. Secondly, there was a disagreement as to how Mr Banville became caught on the conveyor system, particularly concerning the way in which the hand rail on the platform contributed to the accident.
16 As to the first issue, the prosecutor conceded that the reason for Mr Banville's presence on the platform may be relevant to the foreseeability of the risk that existed and, hence, the degree of culpability of the defendant. It was accepted that the risk of an employee being caught in unguarded machinery in an area where no one was expected to be could have a lower level of culpability than the risk of an employee becoming so caught in an area which is commonly frequented by employees. However, the prosecutor submitted that it was entirely consistent with the work duties of Mr Banville and the operation of the quarry for the deceased to be at the platform.
17 Ms Thompson highlighted that it was not unusual for Mr Banville to operate the quarry on his own and was in control of all aspects of the quarry's operations on the day of the accident. The defendant conceded that Mr Banville had operated the conveyor on previous occasions and there was nothing to suggest that this was not the case on the day of the accident. Further, Mr Banville regularly performed various maintenance tasks as well as operational tasks.
18 At 11.00 am on the day of the accident, Mr Banville had a discussion about a problem with the rubber skirting on the hopper of conveyor No. 3 with Mr Hoipo and suggested that he would fix it. The purpose of the rubber skirting was to ensure an even and appropriate flow of sand onto the conveyor. There was no opposition to this proposal by Mr Hoipo. Ms Thompson contended that the evidence was consistent with Mr Banville having used conveyor No. 3 that day. Both the water pump and conveyor were operating at the time of the accident. Ms Thompson pointed to some of the photographs contained in Inspector Chilman's report which show the presence of sand on the structure of the conveyor indicating that it had recently been used. In light of these circumstances, it is reasonable to conclude that after fixing the rubber skirting problem Mr Banville accessed the platform area to satisfy himself that there was no problem with either the conveyor or the discharge of sand into the mixing box. This scenario was supported by the reports of Inspector Chilman and Inspector Johnson.
19 The defendant, on the other hand, submitted that there was no explicable reason why Mr Banville would have been on the platform at the time of the accident. Mr Hodgkinson pointed to the fact that according to Mr Hoipo conveyor No. 3 was not in use on the day of the accident and that if the conveyor was in use at the time of the accident you would expect to see sand on the clothing of the deceased. No sand was found on the deceased and no sand was found in the hopper or in the loader. Mr Hodgkinson refuted the conclusions drawn by the prosecutor from the presence of sand in the photos contained in Inspector Chilman's report. There would, it was contended, have been no occasion for Mr Banville to be at the platform in the course of his work and no reason to observe the operation of the conveyor.
20 Mr Hodgkinson also highlighted that as there were no tools located nearby, it cannot be said that any maintenance or repair work was being carried out and argued that Mr Banville's job did not extend to doing maintenance work that involved mechanical repairs. The platform was only accessed for the purpose of conducting mechanical repairs. The defendant also noted that because the conveyor was subsequently operated without any problem it is unlikely that any fault with the conveyor led Mr Banville to be at the platform.
21 Turning to the final position of Mr Banville, the prosecutor submitted that the reports of both Inspector Chilman and Inspector Johnson concluded that the hand rail on the platform gave way while Mr Banville was leaning across the railing causing his right hand to enter the area between the conveyor's moving head drum and frame. He was thereby pulled in under its axle by the movement of the drum. Inspector Chilman's report states that:
Because of the position Mr Banville was found, it is reasonable to assume he was leaning over the conveyor head drum to observe the feed being discharged into the mixing box. To do this Mr Banville would have needed to lean forward with his weight against the hand rail above the drive motor so as his legs were back away from the moving pulley belts of the motor. In this position Mr Banville would have been pushing down on the end of the handrail that broke.