Insp Robins v CSR Limited t/as CSR Timber Products

HEARING DATES: 10/19/2001 DATE OF JUDGMENT: 11/23/2001

PROSECUTOR: P.M. Skinner of counsel Solicitors: Ms T. Neilson Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: J.N. Gleeson QC with M. Shume of counsel Solicitors: Mr T. Plummer Moray & Agnew

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 23 November 2001

IRC2975 of 2000 INSPECTOR ROBINS v CSR LIMITED t/as CSR TIMBER PRODUCTS Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm296 1 This is a prosecution brought by Inspector Robins of the WorkCover Authority of NSW against CSR Timber Products under the provision of s16(1) of the Occupational Health and Safety Act 1983 (the Act). It is alleged the defendant corporation: . . . being an employer at Masonite Road, Raymond Terrace in the State of New South Wales ("the premises") on 1 July 1998, did fail contrary to s.16(1) of the Occupational Health & Safety Act 1983 (NSW) ("the Act") to ensure that persons not in the Defendant's employment, and in particular, Ms Julie Anne Lister, an employee of Labour Co-operative Limited ("LCL"), were not exposed to risk to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work.

2 The defendant was not the employer of Miss Lister but she was working on their undertaking at their place of work. The prosecutor pleaded the following particulars as to the alleged breach: (a) The Defendant failed to provide or maintain plant and systems of work that were safe and without risks to the health of persons at its premises in that: (i) the recessed area at the corner of the rack was not protected by trip mechanisms; (ii) the warnings on the rack were not audible due to the noisy environment in the Boardmaking Area; (iii) the Boardmaking Area had no line markings to define the path of the unloading rack; (iv) the Defendant had no light fitted at Press 4 above eye level to indicate that a rack was in motion on that corner; (b) The Defendant failed to provide such supervision as was necessary to ensure the health, safety at work of persons at the Defendant's premises in that: (i) Lister was not being supervised at the time of the accident whilst on the Defendant's premises performing tasks in the Boardmaking Area.

3 The defendant entered a plea of guilty to the charge.

4 Accordingly an agreed statement outlining the facts related to the breach was tendered. It relevantly reads as follows: 3. . . . the Defendant conducted business at premises at Masonite Road, Raymond Terrace in the State of New South Wales (hereinafter referred to as "the premises") and had as its undertaking at the premises, the production of hardboard product. 4. At all material times the premises were the Defendant's place of work. 5. At all material times, the Defendant had obtained the services of workers employed by Labour Co-operative Limited ("LCL"). 6. On or about 19 June, 1998, Ms Julie Anne Lister ("Lister") an employee of LCL was requested by LCL to attend for work at the premises to be trained and to perform duties as a labourer/non trades. 7. Lister commenced work at the premises on or about 23 June 1998 and worked again on 30 June 1998 and 1 July 1998 at the premises. 8. Pursuant to an arrangement between the Defendant and LCL, LCL conducted the Defendant's Induction Program for LCL's employees who were to be working at the premises. 9. On 15 June 1998 Lister attended LCL's premises for the Defendant's Induction Program which was conducted by Mr Greg Couper, marketing representative of LCL. On 19 June 1998 Lister attended the Workcover accredited Occupational Health and Safety induction at LCL's premises, which was conducted by Greg Couper and John Dodd, marketing representatives of LCL. Neither training session highlighted the specific hazards associated with presses and/ or automated mobile plant. 10. The Defendant's document entitled "The CSR Timber Products Raymond Terrace Factory, Induction Booklet, Ne w Employee Kit, August 1996" documented the safety induction training provided to Lister on 15 June 1998. At paragraph 23 the document states "Occurrence prevention therefore relies on training people to recognise conditions which have the potential to cause injury to personnel, ie. to recognise HAZARDS and CONTROL the risks" however, the document itself, nor the training provided to Lister identified such hazards. 11. On 23 June 1998 and 30 June 1998, Lister had worked downstairs at the premises, having been trained in another area. On 1 July 1998, Lister commenced working upstairs, being trained by Mr Dennis Sands, the Defendant's Press Operator, to be a Back End Operator in the Defendant's Boardmaking Area. 12. There was no employee on behalf of the Defendant or LCL supervising Lister at the premises on the said date. In fact, the Defendant had dispensed with the position of "Supervisor" in favour of a self-managed team approach. 13. Lister had no experience in operating heavy machinery and had no qualifications related to the operation of plant. 14. At the conclusion of a 12 hour shift on 1 July 1998, Lister would have been classed by the Defendant as being fully competent to perform the duties of a Back End Operator in the Boardmaking Area. 15. The system of work relating to the "spotting up" the wet lap in the Boardmaking area was unsafe. 16. On the said date, Lister was about to "spot up" (or align) the wet lap (board) on the Number 4 Press in the Boardmaking Area when Mr Sands initiated the movement of the automated unloading rack. As Lister went to the right side of Press 4, she became trapped by the unloading rack, as it moved past Press 4. 17. In the subject incident, Lister suffered severe injuries including serious crush injury to the head, chest and trunk. The specific injuries suffered included; a severely swollen head for 1 - 2 weeks, severe bruising on her chest, three broken ribs, a crushed vocal cord, soft tissue damage to her lower arms, left hand, lower back. left hip and thigh, deep lacerations to her back, arms, left hip, leg, buttocks and a large hole on the middle of her back. 18. On 19 May 1999 an Inspector of the WorkCover Authority interviewed Mr Vaughan Wynn Kirkby, Employee Relations Manager for the Defendant. Mr Kirkby was legally authorised to speak on behalf of the Defendant. Mr Kirkby confirmed:- (i) That the Defendant occupied the premises on 1 July 1998 and owned the plant at the premises on that date. (ii) That on 1 July 1998 Lister was performing work in conjunction with the Defendant's business. (iii) That LCL supplied Lister to the Defendant as contract labour casual; (iv). That the site had adopted a self managed team approach which removed the need for a "traditional supervisor". 19. Since the date of the accident, Lister has not returned to work on a full time basis and works 3 days per week for 5 hours each day at the Blackbutt Reserve at Newcastle. 5 Mr P.M. Skinner of counsel appeared as prosecutor for the WorkCover Authority and Mr J.N. Gleeson QC with Mr M. Shume of counsel appeared for the defendant company.

6 An assessment of the objective seriousness of this offence requires a determination of a number of factors viewed objectively. As was held by the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the OH&S Act, this proposition has often been expressed by saying 'the true measure of penalty lies in the nature and quality of the offence'. 7 The defendant company was operating a line of presses at its Raymond Terrace site for the purpose of producing masonite boards. Four giant presses stood side by said on the factory floor. The presses are approximately two metres wide, four metres long, and four metres high. They were operated by steam and rollers. Lighting appeared adequate at the time of the breach. A liquid called "wetlap" was first poured into the presses then it would be pressed into masonite boarding. Travelling along in front of the presses, on a single rail line, was a loading rack. As it reached the press it poured into the press the wetlap. The loading rack then returned to its siding. The press went into operation and produced approximately 20 sheets of masonite board. On the same rail line an unloading vehicle then travelled from the opposite direction to the press. It then connected to the press and took from it the pressed boards. The unloading rack then returned back to its starting position.

8 Both the loading and unloading racks had, prior to the incident, safety features as part of their design. This incident involved an unloading machine so it is relevant to examine the safety features of the unloader rack. On the southern side of the unloading rack was a yellow trip rail attached which sat approximately 110 millimetres above the floor and ran along the rack its full length. Closest to the face of the press the rack was designed with a recessed corner 350 millimetres by 350 millimetres in size. Inside this recess running vertically was another trip wire. On the other side of the unloading rack were similar trip rails and wires. There was also a red light located in the centre of the unloading rack sitting approximately two metres from the floor. A steel ladder ran to the full height of the press on the northern end. A structural steel column stood about six metres away from the press with a control switch attached.

9 Importantly the rail track, on which the unloading rack ran beside press No. 4 (where the breach occurred), took a curve as it came around a bend from whence the unloading rack sat when not in use.

10 The breach occurred when a new operator, Miss Julie Anne Lister, still being trained by CSR Timber for the particular task, was attempting to "spot up" that is, align, the wetlap which had been poured into Press No. 4 after the loader rack had withdrawn. She moved in front of the press to perform this task as the unloading rack came around the curve of the track towards Press No. 4. As it travelled, she was jammed between the press and the travelling unloader rack. It took sometime to release her as the snipwires did not perform their function. Because of the angle of the curve, as the unloader rack came around the curve, the warning wires missed connecting with miss Lister as the recess on the unloader rack corner created a vacuum. The machine therefore did not stop. Miss Lister suffered serious injury. While the gravity of injury arising from the breach does not of itself dictate the level of penalty. The occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. The well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) are relevant: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant.

11 The incident revealed the safety devices fitted to the unloader rack were inadequate when the rack travelled on the curved approach to Press No 4. The breach revealed when the vertical trip wire on the unloader was in such a position it was possible, because of the unloading rack moving through the curve, for the worker to pass between the vertical safety wire and the frame of the machine. The horizontal trip bar across the front of the unloader was too far away on the curved approach to detect the presence of the worker.

12 Further Miss Lister had only on-the-job training for the performance of this task. Through an agreement between LCL and CSR Timber she had attended a training induction programme conducted by LCL on 15 June 1998 for some hours. On 19 June 1998 she attended a WorkCover accredited Occupational Health and Safety Induction course at LCL's premises. After these two general safety induction programmes she commenced work at CSR for the day of 23 June 1998 in casual employment. She worked again on 30 June 1998 and 1 July 1998, the day of the incident. On the first two days she had worked and trained in another area of the factory. On the day of the incident she was being trained by the defendant's press operator, Mr Denis Sands, to be a back-end operator in the defendant's board making area. The operators of the presses worked as a team. The team self-managed. While Mr Sands was training her he did not perceive himself, nor did any other member of the team perceive themselves, as her supervisor. Miss Lister had no experience in operating the machinery and had no qualifications related to the operation of these presses. However, at the completion of a 12 hour shift on which she was working that day, Miss Lister would have been classed by the defendant as being fully competent to perform the duties of a back-end operator in the board making area.

13 An examination of the training programme of CSR Timber reveals there was no specific programme directed to the task she was required to perform on this day. Further no risk assessment of the task had identified that the distinguishing feature of No. 4 Press, which required the unloader rack to approach it on a curve, negated many of the unloader rack's safety mechanisms.

14 While defendant had in place a system of work it had therefore incorporated into the system an unrecognised hazard. Further, while there was in place a general safety training programme performed by the Labour Hire Firm, LCL, who employed Miss Lister, there was no controlled supervision of this untrained worker at the defendant's work site in her trial performance of the task of back-end operator.

15 A further element of the court's consideration in establishing the objective seriousness of an offence is to determine whether the breach revealed an foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible. As was held by Walton J, Vice President, in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at (at 27): Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported decision of Hill J, Matter No. CT 1280 of 1995, 2 April 1997, at 16).

16 The combination of an unskilled, untrained worker, with every good intent, stepping out of the usual place from where a task is performed, together with a design fault on one angle of a machine combined forces to cause this most serious risk to safety. Mr Gleeson QC, for the defendant, while acknowledging guilt, submits the breach could not be "foreseen". The court accepts this is not a breach, the type of which was examined by the Full Industrial Court in Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT1214 of 1990, 30 June 1992) (at 9-10) where their Honours stated: There was a known and perceived danger, unchecked, and left in place. The seriousness of those errors was not open to denial and the case must be assessed on that basis. 17 However, while there was in place a significant number of safety features in the design of the work method, no risk assessment of the task had been undertaken. A defendant must ensure that persons on its site in the use of its machinery are not exposed to risks to their safe working. The fact that this employee was a trainee places a more onerous obligation on the defendant to provide such an employee with appropriate care and guidance. In WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85 Hill J comments as to the obligations imposed by s15 of the Act stating: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 18 The level of culpability of this defendant must be given consideration. The court, in its assessment as to culpability, is guided by the view expressed in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (1999-2000) 95 IR 383 (at 437): The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services . . . and in the system of safety employed . . . Walton J, Vice-President referred to a possible unfairness (at 437): . . . that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of the contribution to an accident is not undertaken. 19 The defendant was not the employer. It had, however, an agreement with a labour hire firm, LCL, to provide it with employees and to conduct some training programmes to develop the employees' awareness of safe working. The evidence reveals the labour hire firm conducted classes directed to ensuring the employees they provided to the defendant had an awareness of general site safety standards. These training programmes were conducted by agreement with the defendant company as part of the arrangement for the provision of labour. However the training of employees in the safe performance of specific tasks was left to the defendant. The evidence revealed the person, the subject of the breach, was being trained on the job in the performance of a specific task but there was no definitive supervisory line of responsibility for that training. There was no written work method for the particular task. The job Miss Lister was performing at the time of the breach was performed within a team operation. Lines of responsibility for the training of new employees were blurred in this team arrangement.

20 Taking into account all the objective features of this offence, I find this was a serious offence sufficient to attract penalty in the middle range. However, Mr Gleeson QC with Mr Shume of counsel for the defendant made a number of submissions as to the subjective elements of the offence in consideration as to penalty. In Lawrence Diecasting the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpates the accused must be secondary to the consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval the passage in the judgment of Fisher CJ in Haynes v James Glass Aluminium Pty Limited (unreported, CT772 of 1991, 20 May 1994) where his Honour said: . . . their importance lies well behind the two primary aspects of the matter, namely, the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 21 In accordance with solutions developed by the defendant company's investigation team and incorporating suggestions from the WorkCover Authority, the following changes to the system of work were implemented by the defendant: (a) A pressure sensitive edge strip to a height of two metres was fitted to the vertical face of the machine on all four corners behind the vertical lanyards (b) An "L"-shaped safety mat was fitted to the stainless steel mat around the ladder on the press. When a person stands on the mat, the detects the presence of the person and isolates power to the rack. (c) A strobe light was fitted above the press operator's position to indicate when the call down button is pressed. It indicated when the unloading rack is in motion. (d) Call down buttons had their colour changed from red so as not to be confused with emergency stop buttons. (e) Call down buttons were identified with engraved plates. (f) Electronic monitoring systems were installed to monitor all rake limits. (g) Limit switches on safety wires were replaced with lanyard safety switches along with the heads on the rack bumper bars so they were mounted in a fail-safe manner. (h) The racks now have an extended safety wire which runs vertically and horizontally. (i) Workers now wear fluorescent safety shirts for greater visibility.

22 Since the breach, under guidelines set by a general manager for safety, health and environment, the defendant company has revised and published safety policies and procedures. Some of the policies are of a general nature and many of the procedures are site related and work method specific. The Board takes part in some of the safety planning. Regular safety audits are now conducted and the defendant company has organised active locally based site safety committees. All employees are now trained in relation to both the "safety commitment and policy" of the company. Site specific occupation health and safety based work methods are also part of the training programme. There is now a continuum of each individual employee's training by the conduct of formal training sessions, tool box talks, specific safety meetings and the mandatory attendance at retraining courses.

23 An audit of compliance with CSR's adopted "Principles of Safe Work" is now performed on each site. Audits are conducted both internally and externally with a view to revealing how a site is performing against 13 basic elements adopted as the CSR Safety Standard. Every site is now audited over a two year rolling period.

24 The defendant is able to state there has been a 37% reduction in injuries from the date of the breach to March 2001. The defendant must regard this improvement as a reflection of the real endeavour which it has put into its retraining programmes.

25 All documents directed to company policy for safety and site safety procedures have been defined as "living documents" with best practice levels the standard applied to each. There is now a procedure in place so each work task is regularly reviewed for a risk assessment to identify hazards, assess risk and review controls in place. More generally, since the incident, the defendant company has developed a sophisticated and thoughtful safety policy reflected in a genuine company commitment to safe working. It no longer attempts to pass over any of its absolute obligation for site safety to any third party.

26 The team structure which was used in the performance of this task has been re-assessed to build in responsibility for the supervision of trainees on-site. However, as Maidment J said in WorkCover Authority of New South Wales (Inspector Callaghan) v Saunders Construction Pty Limited CT1062 of 1993, 26 November 1993, are apposite: Commendable though it is to introduce appropriate occupational health and safety measures after the event, it needs to be remembered the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that all workers are afforded safe working environments irrespective of their own laxities.

27 It is relevant to note the defendant company was sold on 1 November 1998. However, between the date of the accident, 1 July 1998 and the sale of its Timber Products division in November 1998, CSR did not avoid its duty and righted the wrongs in its system of work and its failure to appropriately supervise a trainee. While CSR is no longer involved in the manufacture of timber products of any type, it continues to operate in four major areas - corporate, building materials, construction materials and sugar. At the time of the incident, the defendant employed 10,780 people nationally and at the relevant site it had 90 employees. As a result of restructure is now employs some 7500 employees nationally on approximately 300 sites.

28 A level of deterrence must be factored into consideration as to penalty. However, an appropriate penalty in the present case, must be considered in the context of the need for general deterrence. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context a consideration of breaches under the Occupational Health and Safety Act, 1983 where it was held by Hungerford J: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. These principles were recently cited by the Full Bench with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) where it was said: the . . . 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 . . . 29 While it is submitted specific deterrence is not as relevant as the defendant has vacated the production of timber product, the principles of general deterrence are relevant. The company's industrial record must therefore be given consideration by the court. The company operates in heavy industry. It has been before the court since 1984 on 15 separate occasions and on each occasion the level of the breach determined the WorkCover Authority, through its inspectors, placed the charge before the Chief Industrial Magistrate. The level of penalty imposed for each of the prior breaches of the Act has not been severe. I find, in the circumstances, the element of deterrence can be tempered by an acknowledgment this is a safety conscious employer.

30 It is conceded however, in accordance with the determination of the Commission in Capral Aluminium Limited v WorkCover of NSW (Insp Mayo-Ramsay) (2000) 99 IR 29 the breach attracts the provisions of s 51A where the maximum penalty must be considered at $825,000.

31 The corporate character/reputation of the company is relevant to the court's consideration as to mitigation of penalty (see full discussion of the nature of character and reputation evidence in Melbourne v The Queen 198 CLR 1; WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Limited (unreported, IRC6985 of 1999, 8 November 2000, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm15 (published 8 March 2001); WorkCover Authority of New South Wales (Inspector Farrell) v Forgacs Shipyard Pty Ltd [2000] NSWIRComm227 (published 12 October 2001); see also discussion referred to in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92).

32 The defendant is a major corporation which provides significant employment in New South Wales. The court is persuaded by the documentation and sworn evidence that there was prior commitment to the principles of safe working by this defendant and that further significant monies had been spent to endorse its safe working commitment.

33 A further subjective element was placed before the court in consideration of penalty. CSR is a licensed self-insurer for the purposes of the New South Wales Workers Compensation legislation. I am assured, as the insurer, the defendant took particular care for this injured worker and has assisted her towards recovery from what is admitted were serious injuries. It no longer passes out this obligation to any third party.

34 This breach however reveals circumstances where the Court must reiterate there can be no sharing out, even through contract, of the absolute obligation for safe working by a defendant employer conducting its undertaking at its place of work to another organisation who, as a labour hire firm, sits as the nominal employer of the employees at a defendant's work site. Evidence revealed CSR held full responsibility for the design of this work method and the machine's safety features. Although the defendant involved the labour hire firm in its training programme for site safety as a large organisation it must accept it cannot pass over its obligations for site safety to such as the labour hire firm. Each organisation must meet its own obligations whether it be as the employer or as the contractor (see Insp Mansell v Anytime Industrial Services Pty Limited [2001]NSWIRComm 237 (published 12 October 2001) [at 21] with reference to WorkCover Authority of NSW (Insp Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm 115; WorkCover Authority of NSW (Insp Stothard) v BHP Engineering Pty Ltd (unreported decision, IRC7290 of 1997, 16 July 1999); WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000]NSWLRComm15 (published 8 March 2001).

35 The defendant puts no submissions in relation to its capacity to pay the fine (s6 of the Fines Act 1996; Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; AREF Rahme (1989) 43 A Crim R 81 and 86-87.)

36 The New South Wales Court of Criminal Appeal published a guideline judgment in R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 A Crim R 104) directed to the consideration a court should give when a plea of guilty is entered by a defendant. The judgment [at 151-155] calls for a discount in consideration of the utilitarian value of a plea of guilty. A court can allow a discount of up to 25% on the utilitarian value of an early plea. The file reveals this charge was laid on 6 November 2000. However, a further amended summons was laid on 19 April 2001 and a plea of guilty was entered on that day. The file reveals an agreed statement of facts was then filed within three weeks. Further, evidence revealed another party involved in this incident was charged with breaches under the Occupational Health and Safety Act 1989 and the associated litigation took two days of hearing before the Commission. Such factors provide the court with an indication as to the utilitarian value of this plea of guilty. However, in R v Carter [2001] NSWCCA245 (27 June 2001), Barr and Howie JJ considered the effect of the guideline judgment in R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 A Crim R 104 held [at 14]: . . . although the evaluation of the discount is a matter for the discretion of the sentencing judge , that are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when, the plea is entered, so that the earlier the plea the larger the discount and , secondly , the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may… exceed the normal upper range of 25 per cent.

In Carter , their Honours [at 16] further commented it was erroneous for a court, when determining the utilitarian value of the plea to consider the fact the case against the defendant was very strong. In the circumstances, where there has been a plea of guilty and where there was litigation indicating the complexity of a possible trial, I allow a discount of 15% as to penalty.

38 I take into account the objective seriousness of the offence and the above subjective features and include the discount allowed in this consideration as to penalty. The defendant is fined in the sum of $150,000 with a moiety to the WorkCover Authority.

39 The defendant is to pay the prosecution's costs to be agreed or assessed and to be brought back before the court for consideration and final orders.

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