Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor

Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor - [2001] NSWIRComm 130 - NSWIRComm 2001 case summary — Zoe

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SECOND DEFENDANT: Andrew Bell FILE NUMBER: IRC 2052 and 2055 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health and Safety - Prosecutions under s15 of the OH&S Act - Prosecution arose from collapse of mine roof - Support of mine roof paramount to safety of employees - Statutory scheme for coal mining industry - Statutory scheme concerns support of mine roof and management of rules for same - Public interest requirements - Detriments to safety - First defendants failure to ensure support rules followed - Absence of roof bolts - Failure in brushing procedures - Prosecution for a failure to adequately supervise employees not system of work, training or instruction failure - Settled safety procedure - Procedure would have avoided incident if followed - Instructions and rules not enough - Must ensure adherence to procedures and rules - Need to provide adequate supervision - Failure to maintain adherence to systems of work - Discount having regard to recent acquisition of mine by first defendant and actions to improve safety - Steps taken after incident laudable but also reveal deficiencies in supervision - Absence of brushing rules of minor significance - Incident reasonably foreseeable - Fatality - Offence a serioius one - Need for general and specific deterrence - Subjective features - Thirty percent discount - Finding of guilty - Verdict entered - Conviction - Penalty - Second defendant - Principles relevant to application of s10 of the Crimes (Sentencing Procedure) Act - Operation of s50 of the Act - Second defendant less culpable - Failure to prosecute other managers and supervisors - Principles in this respect - Credit for improvements at mine - Early plea and cooperation - Second defendant contrite - Personal circmstances considered - Affect of incident on second defendant - Found guilty - No conviction - Charge dismissed - Application required if costs sought Coal Mines Regulation Act 1982 ss32; 36; 37; 38; 39; 40; 41; 42 and 102 Coal Mines Regulation (Support - Underground Mines) Regulation 1984 cls 6; 7 and 21 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s10 Occupational Health and Safety Act 1983 ss15; 50 Crimes Act 1900 s556A Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium v WorkCover Authority of New South Wales (2000) NSWLR 61 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel v WorkCover Authority (Insp Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 R v Thompson, R v Houlton (2000) 49 NSWLR 383 Schultz v Tamworth City Council (1995) 58 IR 221 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 CASES CITED : WorkCover Authority of New South Wales (Insp Lyons) v Warman International Pty Limited [2001] NSWIRComm 62 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority of New South Wales (Inspector McKensey) v Waste Recycling and Processing Services of New South Wales [2000] NSWIRComm 218 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of New South Wales (Inspector Shepherd) v The State Rail Authority of NSW [2000] NSWIRComm 179 WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58 WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427

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Managers (1) The owner of a mine shall not work the mine at any time when: (a) there is no person appointed or nominated as the manager of the mine under this section; or (b) except as provided by section 48, there is more than one person appointed or nominated as the manager of the mine. (2) The owner or superintendent of a mine may appoint a person as the manager of the mine or the owner of a mine, being an individual, may nominate himself as the manager of the mine. (3) No person, other than an owner or a superintendent of a mine, shall appoint a person as the manager of a mine. (4) The owner or the superintendent of a mine shall not appoint a person as the manager of the mine unless that person, or the owner of a mine (being an individual) shall not nominate himself as the manager of the mine unless the owner is the holder of: (a) in the case of an underground mine at which the total number of persons usually employed below ground during a period of 24 hours when the mine is being worked is more than 15 - a certificate of competency to be a manager of a mine; (b) in the case of an underground mine at which the total number of persons usually employed below ground during a period of 24 hours when the mine is being worked is not more than 15: (i) a certificate of competency to be a manager of a mine; or (ii) a certificate of competency to be an under-manager of a mine and a permit, issued to him by the Chief Inspector under subsection (5) and currently in force, to be the manager of the mine; or (c) in the case of an open cut mine - a certificate of competency to be a manager of an open cut mine. (5) The Chief Inspector may issue to the holder of a certificate of competency to be an under-manager of a mine a permit to be the manager of a mine, specified in that permit, at which not more than 15 persons are usually employed below ground level during a period of 24 hours when the mine is being worked. (6) A permit issued under subsection (5) shall be in force for a period of 12 months, commencing from the date of issue (or, where a later date is specified in the permit, from that date), but may be renewed by the Chief Inspector on the recommendation of the district inspector for further periods, each of 12 months, commencing from the day after a date of expiration of the permit. (7) The Chief Inspector may, by notice in writing given to the holder of a permit issued under subsection (5), cancel that permit. (8) Copies of a notice given under subsection (7) to the holder of a permit to be the manager of a mine shall be sent by the Chief Inspector to the owner or the superintendent of the mine. (9) A person shall not be the manager of more than one mine at the one time except with the approval of the Chief Inspector. (10) The Chief Inspector shall not, under subsection (9), approve of a person being the manager of more than 2 mines at the one time. 37. Functions of managers (1) Subject to any instructions given to the manager of a mine or to another person employed at the mine by: (a) the owner of the mine; (b) a superintendent of the mine; or (c) an assistant superintendent of the mine;

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located in a part of the mine which is fenced off in pursuance of the regulations) are adequately supported where necessary for safety; (d) ensure that officials at the mine are in possession of such information and plans as are necessary to enable those officials to ensure that all operations at the mine for which they are responsible are carried out in a safe manner; (e) ensure that the officials appointed by the manager are trained in the exercise of any functions which they are required to exercise under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; (f) display in such manner and for such periods as may be prescribed copies of all exemptions from complying with any provisions of, or made under, this Act which have been granted in respect of the mine; (g) take steps to ensure that any matter which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to his attention; (h) take such steps as may be necessary to ensure that at all times he is in possession of all available information relevant to the behaviour of strata surrounding the mine and its relationship to the safe working of the mine and all available information regarding disused excavations or workings in the vicinity of the mine; and (i) subject to subsection (3)(b), read each report, record or other item of information which is required to be made or recorded under this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder immediately upon his becoming aware of the existence of the report, record or other item. (3) The manager of a mine shall be deemed to have complied with: (a) (Repealed) (b) subsection (2) (i) in respect of a report, record or other item of information referred to in that paragraph if: (i) the manager ensures that it is read by a person appointed by the manager in writing (being a person having such qualifications as may be prescribed for the purposes of this subparagraph) immediately upon that person's becoming aware of the existence of the report, record or other item, and (ii) the manager has taken steps to ensure that any matter disclosed in the report, record or other item which is of an abnormal or unusual nature and which could affect the safety of persons in the mine is promptly brought to the manager's attention. 38. Deputy managers (1) The owner, the superintendent or the manager of a mine may appoint a person as a deputy manager of the mine or appoint a number of persons as deputy managers of the mine. (2) The owner, the superintendent or the manager of a mine shall not appoint a person as a deputy manager of the mine unless that person is the holder of: (a) in the case of an underground mine - a certificate of competency to be a manager of a mine; or (b) in the case of an open cut mine - a certificate of competency to be a manager of an open cut mine. (3) No person, other than an owner, a superintendent or a manager of a mine, shall appoint a person as a deputy manager of a mine. (4) If a deputy manager of a mine is present at the mine while the manager of the mine is absent, the deputy manager: (a) has full charge and control of all persons employed at the mine and of all operations at the mine; and (b) must enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (c) has such other functions as may be conferred or imposed by this Act on a deputy manager of a mine. 39. Under-managers in charge (1) The owner of an underground mine shall not work the mine: (a) at any time when the manager of the mine is also the manager of another mine in pursuance of an approval given under section 36(9) - unless there is a person appointed under this section as an under-manager in charge of the whole of the mine or there is a number of persons appointed under this section as under-managers in charge in respect of the several underground parts of the mine; or (b) where the Chief Inspector has, by reason of the size or condition of the mine, directed the owner not to work the mine unless a person is appointed under this section as an under-manager in charge of the whole of the mine or such number of persons as is specified in the direction is appointed under this section as under-managers in charge of the several underground parts of the mine - unless there is a person, or there are persons, appointed in compliance with the direction. (2) The owner, the superintendent or the manager of an underground mine may appoint a person as an under-manager in charge of the whole of the mine or appoint a number of persons as under-managers in charge of the several underground parts of the mine. (3) The owner, the superintendent or the manager of an underground mine shall not appoint a person as an under-manager in charge of the whole of the mine or of an underground part of the mine unless that person is the holder of a certificate of competency to be an under-manager of a mine. (4) No person, other than an owner, a superintendent or a manager of an underground mine, shall appoint a person as an under-manager in charge of the whole or of an underground part of an underground mine. (5) If an under-manager in charge of an underground mine is present at the mine while the manager of the mine is absent and while there is no deputy manager of the mine present, the under-manager in charge: (a) has full charge and control of all persons employed at the mine and of all operations at the mine; and (b) must enforce the observance, by all persons employed at the mine, of this Act, the regulations, the rules and any schemes and any directions, or conditions of exemptions or approvals, given thereunder; and (c) has such other functions as may be conferred or imposed by this Act on an under-manager in charge of an underground mine. 40. Under-managers (1) The owner, the superintendent or the manager of an underground mine may appoint a person as an under-manager of the whole or of an underground part of the mine or appoint a number of persons as under-managers of the several underground parts of the mine. (2) A person may be appointed as an under-manager of the whole or of an underground part of an underground mine notwithstanding that no under-manager in charge of the whole or of the underground part of the mine has been appointed under section 39. (3) The owner, the superintendent or the manager of an underground mine shall not appoint a person as an under-manager of the whole or of an underground part of the mine unless the person is the holder of a certificate of competency to be an under-manager of a mine.

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31 The audit assessed the mine's current level of workplace safety against the 9 elements outlined above. Ratings between 1 and 5 were given for each element, 1 being unacceptable practice and 5 being best practice. A rank of 3 was considered acceptable. 32 A report was issued which was entitled "Berrima Mine OH&S Audit 1995: Audit Based on New Centennial Standard" ("the report"). Out of the nine elements set out above, the mine received three ratings of "2", being "poor", three ratings of "2 approaching 3" and three ratings of "3". What each rating meant depended on the element being assessed, however, a "2" always equalled the result of "poor". The report made several recommendations for the improvement of safety at the mine. 33 In cross-examination Mr Cameron explained the "poor" rating in the following terms: Q. Can you explain to me what your understanding of the rating for that element, namely, commitment and involvement to occupational health and safety where they say "Based on the above information the rating for this element is 2." What is your understanding of that rating? A. We of our own volition sought this in the early period of the implementation of our plan that we expected upon purchasing this mine. My comment before was we did it to recognise the problems that were there because we had not long owned or managed this mine. The purpose of this was to identify those areas which our OH & S plan had to address. Clearly we did it so the problems would come out. The consultant identified the areas we needed to address and identified those points you passed over which were the positive things we had done within the four months of implementing our plan. 34 Those positive points related to the company's commitment and involvement to occupational health and safety. They were referred to in the report as follows: · the company safety policy is displayed in several prominent [positions] around the office and surface buildings. · safety glasses were worn by personnel underground (this supports the eye protection policy). · a copy of the health and safety newsletter was found on the panel crib room table and looked well read. · a binder was located in the crib room containing plasticised copies of all the managers rules related to underground operations i.e., support rules, sequence of operation etc. · safety signage around the mine site is in reasonable condition. 35 It should also be noted that the audit also made observations in relation to this element (of commitment and involvement) which may be characterised as negative or wanting in terms of safety. Specifically, the audit noted that there was no Centennial/Berrima Occupational Health and Safety Manual for the mine or Safety Handbook for employees, nor any 'job documents' which described the activities and

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Duties of Various Mine Personnel under the Coal Mines Regulation Act 42 In cross-examination, Inspector Conlon explained the obligations of mine employees and, in particular, those obligations arising under statutory provisions specifically governing coal mines as follows: Q. That means he is a mine worker. Mine workers - and we are moving from the bottom of the table to the top - have certain obligations under the Coal Mines Regulation Act, do they not? A. Yes. Q. In terms of putting up temporary support when carrying out coal mining under clause 8 of the Coal Mines Regulations Act? I can help you with it, it is over at 23 under the heading B, the third dot point, you see clause 8? A. Clause 8, "No temporary support put up by workers." Q. And you see then if you go back to page 9, Mr Jones, Mr Windley and Mr Byfield, they are identified as deputies. You know what a deputy is and I know what a deputy is but there may be some people in the court who do not know what their obligations are. The deputy, putting it in short terms, is a safety officer for the men, is that a way of putting it? A. That is one way of putting it, amongst other things. The deputy, your Honour, would be perhaps related to a foreman in occupations outside of the coal mining industry but, having said that, the deputy does assume the statutory responsibilities of manager and the under-manager in charge in the absence of those people at the site. Q. So, Mr Conlon, they in fact work with the men underground, the deputies? A. Yes, and they supervise. Q. And they are, as you have said, statutory officials under the Coal Mines Regulations Act? A. That is correct. Q. Then we have Mr Roser who is the under-manager in charge? A. That is correct. Q. An under-manager again has statutory obligations under the Coal Mines Regulations Act? A. Yes. Q. Unlike the deputies who work with the men on the job and supervise them as they are carrying out their duties the under-manager usually, and I am sure they will forgive me for saying this about them, may give the men their directions in the morning or perhaps at the commencement of their shift, plan their work but do not work on site underground with the men, is that correct, normally? A. They do not normally work underground on site with the men on a continuous basis. With regard to any instruction given from the under-manager the normal course of duties would be that that would be given from the under-manager to the deputies more so than to the individual workmen. Q. So they instruct the deputies and the deputies instruct the men? A. That is correct. Q. Then you have the mine manager who in this case was Mr Bell and he instructs the under-manager and he is a statutory official under the Coal Mines Regulation Act and he is in charge of the mine? A. That is correct. 43 Mr Bell, the second defendant and manager of the first defendant, gave details during examination in chief relating to the activities of the various statutory roles. As manager he went underground a minimum of once per week and would speak to the under-manager every day. The under-manager would go underground every day during the mine's

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The roof cut out commenced from the normal roof horizon and was excavated into the roof to a depth of approximately one (1) metre. The width of the cut out was the width of the continuous miner head, 3.3 metres. The length of the cut out at the time of the accident was 14 metres. A 4.9 metres long 'W' Strap had been erected along the right-hand lip of the roof cut out. The 'W' strap was secured to the roof by three (3) roof bolts. A second 'W' strap was in the process of being erected to overlap the previous 'W' strap. A hole had been drilled in the roof to accommodate this. Geoff Boothman was positioned at the end of the first 'W' strap ready to insert the roof bolt into the hole. The second 'W' strap had been overlapped prior to the installation of the roof bolt. The second 'W' strap was being held to the roof by Ron Foodey. Bruce Fraser was holding up the end of the 'W' strap on the inbye side. Both R Foodey and B Fraser were standing under unsupported roof under the lip of the roof cut out, whilst holding the 'W' strap to the roof. No temporary supports were erected in this area. (Refer to position of Boothman, Foodey and Fraser as detailed on Plan A3-BE16/1). At this time the fall of top coal occurred resulting in Mr Fraser receiving fatal injuries. ... 55 The contributing factors leading to the collapse were identified in the Inspector's Report as follows: I) 'C' Heading driven off centre The off centre drivage of 'C' Heading resulted in the roof cut out not being in the centre of the roadway. Once the roof cut out had been made it did not align with the area of 69 cut through where roof bolts had been omitted during the drivage of 69 cut through. The roof cut out resulted in an excavation lip of only 400mm from the left-hand rib line of 'C' Heading, consequently the right-hand side lip had a cantilever effect of some 2.5 metres from the lip to the right-hand rib line and 3 metres to the closest roof bolts in 69 cut through. II) The Roof Cut Out The roof cut out for the overpass excavation penetrated through the coal plies of the immediate roof stratum exposing a second "free face". This promote bed separation of the roof plies due to time of exposure and the effects of gravity on the coal plies. This, added to the cantilever without any support, finally resulted in failure of the roof beam resulting in the fall. The integrity of the immediate roof beam to bridge across the intersection was destroyed when the roof cut out was undertaken. III) Survey Sights and Laser Alignment To enable accurate "on centre" drivages to be undertaken, accurate sights and laser alignment are essential. One sight string was missing from 68 cut through 'C' Heading so sight strings from further outbye had to be utilised; this can compound inaccuracies. 'C' Heading was advanced without the laser being available until the day shift Deputy, I Jones, located the laser and commissioned it as best he could. It was during this early part of the day shift production shift that the 'C' Heading drivage deviated from centre. [a section of the document was here excluded by agreement of the parties] IV) Failure to support roof in the area of C/69 Intersection The failure to set roof supports in the C/69 intersection area resulted in 22.6 metres of unsupported roof. The workmen would have been exposed to this unsupported roof during the initial drivage of 'C' Heading through the C/69 intersection area …

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82 Mr Cameron gave evidence that the Centennial group had taken lessons from the incident and applied that learning across the entire mining group. Specifically, at the mine, much procedural review was undertaken including reviews of the communications, planning, documentation and meetings systems. This has included a system of documentation to prevent conflicts in the accounts of what instructions have been given in relation to procedure in the mine. 83 Refresher training also occurred by way of engaging the services of an external consultant. This training centred around mine roof bolting and included an overview of the purpose of bolting during mining operations and specifically the purpose of same in mining even in a "good" roof. The training also dealt with common bolting problems and identification of those problems. 84 In addition, Mr Cameron indicated that the safety risk management plan had been revised by "[reordering] its priorities from the lessons …learnt from this experience". A geotechnical review of the support rules was carried out, again by an external consultant. The review occurred soon after the incident, that is on 3 May 1996, and concluded that the support rules then promulgated represented the minimum support. Additional bolts should always be installed where there is doubt about the integrity of the roof. The report noted that the Colliery's proposed new Support Rules of 2 May 1996 would produce stable roof conditions if properly implemented. 85 Mr Cameron also stated that there has been continual monitoring and supervision at the site: The general manager mining reports to me and the managers report to him. In turn of course at the mine site, the under-manager reports to the manager and the deputy to the under-manager. What we have done right through that generally is emphasise the need for good communication for planning, or mentoring of the people below you and for doing hands on in understanding what is going on with those people who are reporting to you so we have looked at all those communication channels and put a bit emphasis on making sure that people are aware of what is happening. 86 The company has further emphasised its commitment to safety in the mining industry by Mr Cameron signing a pledge on behalf of himself, the first defendant and the Centennial group. The pledge is the Minerals Council of Australia's Safety and Health Statement. It states

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140 The Act compels an employer to ensure that those systems of work, which it has designed to ensure the safety of its employees, are complied with at all times. This requires not only the promulgation of rules and instructions establishing a safe system of work, but the provision of adequate supervision to ensure they are complied with. The Full Bench in WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 stated in this respect (at [16]): Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8).

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154 The issue of deterrence has been dealt with determinatively in Capral. I set out the relevant passages of that judgment at [74 - 79]: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare , and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at 4): An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act . At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety : see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland 41 and 43: 41 ... the community has indicated that it wishes to denounce this conduct in the strongest terms. ... By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern … 43 Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have deterrent effect on others. We conclude, in the light of the extract from the judgment in R v Howland that the significant increases in penalty which occurred from 1996 are of considerable significance in emphasising the importance of both particular and general deterrence in the sentencing process for offences against the Act and that the approach exemplified by the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited is decisively confirmed by that legislative intervention. It follows that we do not accept the appellant's submissions in relation to the question of deterrence, although the precise weight to be given to that issue is inevitably within the sentencing judge's discretion : Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant . (emphasis added)

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(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. 161. The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of Jurisic and Henry included a plea of guilty. That was not the case in Wong in which the range encompassed relevant matters, including a plea. In each of Jurisic at 231 and Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons. 162. The discount range propounded for a guilty plea based on utilitarian consideration is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences. The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. Insofar as existing sentencing practice has been to allow discounts for pleas up to 35 percent, encompassing all relevant matters, such a practice remains appropriate. The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

[300]

176 An illustration of the extraordinary and highly exceptional circumstances under which a discretion has been exercised pursuant to s556A of the Crimes Act 1900 was given by the Full Bench in Profab by reference to the decision of Hungerford J in Wong v Melinda Group Pty Ltd (1998) 82 IR 118. The Full Bench in Profab identified those circumstances as follows at [22]: The most recent case in this jurisdiction where a matter was dealt with pursuant to s 556A is that heard by Hungerford J in Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 133. The unusual circumstances of the case and the reservation expressed by his Honour demonstrate both the limited nature of cases where s 556A will be appropriate and the reluctance in this jurisdiction to invoke it: I wavered during the hearing, as debated with Mr. Goot , whether this case was appropriate for the application of s.556A. However, on balance, and after reviewing the evidence, I am comfortably satisfied it is. In all the circumstances, I cannot conceive it to be just for the defendant to suffer a criminal record for what occurred. The defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety considerations in respect of the King Street building over very many years was well established and, in particular, its actions in arranging an appropriate and safe system for the external cleaning of the building's windows, including the approval of the WorkCover Authority, is clear. The real and effective culpability for the tragic accident which occurred to Mr. Child was that of a tenant, Mr. Timmins, and of Mr. Child's employer, Towabug Pty. Limited. The defendant was simply unaware of the arrangements for the work to be performed by Mr. Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident which occurred. Indeed, the defendant engaged a consultant, Alan Keevers Enterprises Pty Limited, to provide building services, necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The defendant, in my view, has been subjected to extenuating circumstances over which it had no direct control. It follows, in my view, that it is inexpedient to inflict any punishment on the defendant. I propose to apply the provisions of s.556A of the Crimes Act by dismissing the charge.

[304]

178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]: Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.

[321]

195 I note also that this analysis of Nesmat and Wong has been affirmed by Wright J, President, in Walco (No.2) where his Honour stated at [31]: … In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant. 196 And further at [33]: The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the "justifiable sense of grievance" is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and 1106, 4 February 2000) at 104 - 107. The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

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