Inspector Barbosa v The Crown in Right of the State of New South Wales

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Batty v Graincorp Operations Limited [2002] NSWIRComm 49 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 CASES CITED: Inspector Peter Ankucic v The Crown in Right of the State of New South Wales (Department of Education & Training), unreported, 29 July 2003 Nelmac Pty Ltd v Inspector Franke [2006] NSWIRComm 100 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education & Training) (2000) 112 IR 1

Prosecutor: Mr R. Reitano, of counsel Solicitors: Carroll & O'Dea LEGAL REPRESENTATIVES: Defendant: Mr M. Shume, of counsel Solicitors: Department of Education and Training

Inspector Jose Barbosa v The Crown in Right of the State of New South Wales (NSW Department of Education and Training)

Prosecution pursuant to s 8(2) of the Occupational Health and Safety Act 2000

1 The Crown in Right of the State of New South Wales (NSW Department of Education and Training) has pleaded guilty to an application for order which alleges that an offence was committed under s 8(2) of the Occupational Health and Safety Act 2000. 2 The application for order alleges that on 23 September 2002 at the Arthur Phillip High School, Macquarie Street, Parramatta the defendant failed to ensure the safety of persons other than its employees, in particular Miss Zahra Jafari, were not exposed to risk to their health or safety arising from the conduct of its undertaking while at its place of work. The application for order further alleges that the defendant failed to ensure that a Supershear pedal operated guillotine (the plant) which was provided for use by persons such as Miss Jafari was safe and without risk to health. 3 The offence is further particularised, in part, in the following terms:

The plant did not possess appropriate guarding at its rear so as to ensure that access to the cutting blade of the guillotine was not possible whilst the guillotine was being operated. On the said date at the said site Ms Jafari placed her left hand into the guillotine and suffered the traumatic amputation of the top joint of her left index finger. 4 At the time of the offence Miss Jafari was a fourteen year old year 8 student at the school. She was attending a metalwork class under the supervision of her teacher, Mr Brian Wilton. Miss Jafari was assisting another student Master Mario Fayjloun to cut a small piece of metal on the guillotine. Miss Jafari went to the rear of the machine for the purpose of preparing the small piece of metal to be cut. When she was aligning the piece of metal near the guillotine cutting blade Master Fayjloun depressed the pedal on the guillotine causing the blade to descend onto the metal cutting surface. At that moment Miss Jafari's hand was still present on the metal surface and as a result she suffered the traumatic amputation of the top joint of her left index finger. She was taken to Westmead hospital where she was admitted for two days and was absent from school for one week. 5 The agreed statement of facts which was tendered in these proceedings discloses that the students including Miss Jafari were taught how to use the guillotine. The machine was operated normally from the front where a safety guard is located. This guard apparently closes down when the pedal is operated which supports and holds the sheet metal when it is cut. At the time of the accident two students were using the machine at the same time. Master Fayjloun was in the front of the machine and Miss Jafari was at the rear of the machine. The rear of the machine was unguarded. The teacher supervising the class at the time was apparently at the front of the classroom reprimanding three other students. 6 According to the affidavit of Peter Brian Johnson sworn 2 September 2005, a senior legal officer employed by the defendant, and tendered into evidence in these proceedings, sheet metal cutting guillotines of the type involved in the accident the subject of this offence are not manufactured with a rear guard. Nevertheless in relation to the guillotine in question a rear guard was installed on an undisclosed date soon after 23 September 2002. At some stage a list was prepared by the defendant of all metal cutting guillotines in schools that now have guarding at the rear. The total cost of guarding the machines has been $409,000. There remain however some seventeen guillotines in schools that according to the defendant are unable to be fitted with rear guards and have not been replaced by the defendant. Although these seventeen unguarded guillotines have been removed from service in respect of students, teachers continue to be permitted to use them. According to a memorandum dated 22 May 2003 annexed to Mr Johnson's affidavit the defendant has given express permission to staff to continue using the unguarded machines for the preparation of class materials and ongoing HSC projects so long as no students are present. 7 The defendant contended that restricting the use of the unguarded guillotines to teachers minimises the risk to safety although it does not eliminate it. This measure is in accordance with a departmental memorandum to school principals, a section of which dealt with a hierarchy of controls under which risks are managed by reference to an order of priority with the highest priority being hazard elimination and prohibition of equipment and the lowest priority being confined access of the subject equipment to persons who may reasonably be expected to have a level of competency in relation to the use of the equipment. I will deal with the relevance of this submission at a later stage in these sentencing remarks. Consideration

8 The material relied on by both parties in this matter reveals a serious breach of s 8(2) of the 2000 Act. The guillotine was manufactured without a rear guard and yet it was available for use by school children during classes. On this particular occasion, Miss Jafari accessed the machine from the rear which was visibly unguarded while her teacher was otherwise occupied. She was exposed to the very serious risk of amputation from a cutting blade some 1200mm long simply from the actions of a fellow student depressing the pedal on the machine thereby causing the blade to descend onto Miss Jafari's hand. 9 During the sentence proceedings, the prosecutor handed to the Court a copy of the Local Court decision of Inspector Peter Ankucic v The Crown in Right of the State of New South Wales (Department of Education & Training), unreported, 29 July 2003. The decision concerned a breach of s 16(1) of the Occupational Health and Safety Act 1983 in which the defendant was charged with failing to adequately guard the moving parts of a manually operated guillotine. A number of features in the decision are strikingly similar to the present facts. The facts set out in that decision reveal that a student, left unsupervised, attempted to cut a cabinet lid on the guillotine from a position at the rear of the machine by holding the lid in place while a fellow student pressed the foot pedal of the machine. The fellow student pressed the pedal before the student standing at the rear had removed his fingers from the cutting blade with the result that two fingers on the left hand were severed by the cutting blade. As in the present circumstances, the defendant took measures to ensure that the particular guillotine involved in the accident was fitted with a rear guard. 10 During the course of his reasons, the Chief Industrial Magistrate, Mr Miller, ordered the defendant under s 115 of the 2000 Act to publicise the offence, its consequences and the penalty imposed to school principals and industrial arts teachers within three months of the date of the decision. On 27 October 2003, the defendant duly sent out a notice. The notice contained an instruction in the following terms:

All principals are reminded that, consistent with Memorandum to Principals DN/03/00222 "Guarding of Sheetmetal Guillotines in School Workshops" dated 22 May 2003, all manually operated sheetmetal guillotines must have guarding at the rear of the guillotine to prevent unauthorised access to the cutting blade and a lock on the treadle to lock off the machine when not in use.

Any guillotines without rear guarding must be locked or chained to prevent student use. 11 The offence before the Chief Industrial Magistrate was committed on 13 November 2000, that is, some eighteen months before the commission of the present offence. During these proceedings, my attention was drawn to the Full Bench judgment of Batty v Graincorp Operations Limited [2002] NSWIRComm 49. In that judgment, error at first instance was found on the basis that insufficient weight had been afforded by the sentencing judge to the fact that there had occurred a, "recent prior risk to safety comparable to the incident giving rise to the prosecution". This fact required that due weight be given to the risk to safety which was clear and that deterrence was also a significant consideration. The case of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at [75] was invoked in support of the finding. 12 The judgment of Batty v Graincorp Operations requires me to consider the relevance of the offence committed on 13 November 2000 to these sentencing proceedings which I now do. First, the two offences occurred within a reasonably short time frame of the other. Secondly, as I have earlier commented, the circumstances which gave rise to both offences are strikingly similar. Both these factors compel the conclusion that the present offence is rendered objectively more serious: see for example Nelmac Pty Ltd v Inspector Franke [2006] NSWIRComm 100 at [41]. 13 Moreover, it would appear that the existence of the risk to safety posed by the unguarded guillotine was known to the defendant at least as at the date of the earlier offence that is on 13 November 2000. No steps however were taken to obviate the risk to other students posed by other unguarded guillotines until a Memorandum to Principals dated 22 May 2003 was sent by the defendant which notified school principals that the manufacture and installation of appropriate guarding for the guillotines would commence in the third term of 2003. The Memorandum, relevantly, advised:

Principals are required to ensure that the head teacher or senior teacher of industrial arts check that all manually operated sheetmetal guillotines have:

• guarding at the rear of the guillotines to prevent unauthorised access to the cutting blade, and

• a lock on the treadle, to lock off the machine when not in use.

School Building Service and Equipment Maintenance Contractors (SBSEMC) have been instructed to identify guillotines without these features and the Department of Commerce is presently arranging the manufacture of guards for the machines to ensure compliance with all safety requirements. It is anticipated the SBSEMC will commence installation of these additional guards during Term 3, 2003.

Until these modifications are undertaken, any sheetmetal guillotine:

• without rear guarding must be locked or chained to prevent student use,

• without a treadle lock, must be secured when not in use by alternative means (e.g. lock and chain) or removed from use.

Staff may continue to use these machines for the preparation of class materials and ongoing HSC projects with no students present.

TAS staff using sheetmetal guillotines are reminded they must ensure:

• guillotines are single user machines, tandem operation is prohibited,

• when not in use, guillotines are to have the treadle locked to prevent unauthorised access,

• the opening between the guard/clamp and the table should be set to the thickness of the sheetmetal and not left as a gap great enough for fingers to be inserted and crushed when the guillotine is operated,

• where the guillotines are not available for student use, hand tools or bench shears are to be used for cutting sheetmetal." 14 In addition, the defendant distributed to all government schools via its occupational health, safety and rehabilitation unit, an occupational health and safety bulletin dated August 2001 entitled "Guarding of equipment and machinery". The bulletin directed that any part of a machine that can pose a danger must be guarded in order to prevent injury through the possible failure of parts during operation or in order to block access to dangerous areas of the machine. Another bulletin dated September 2001 entitled "Taking safety seriously" warned of the dangers posed by the absence of the appropriate guarding of circular saws. 15 These bulletins were issued prior to the date of the present offence although nothing seems to have been done by the defendant to implement any of the directives contained in both bulletins in relation to the rear guarding of guillotines. This is despite the incident of 13 November 2000. 16 In WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education & Training) (2000) 112 IR 1, his Honour Justice Walton, Vice-President, emphasised the objective seriousness of an offence where the factual context involved unguarded machinery being operated by young and inexperienced children attending secondary schools. The facts before his Honour involved the operation by secondary school students of an inadequately guarded circular saw, and injuries sustained to a student's left hand while operating the circular saw. At [51] and [52] of the judgment, his Honour said:

[51] The seriousness of the offence is, in my view, greatly increased by the fact that inherently dangerous machinery was used by secondary school students in the classroom. Where machinery is to be used by young people, it is essential that the safety procedures employed take into account the fact that children of secondary school age are generally inexperienced in the operation of machinery, may have limited knowledge of risks which may arise in the use of machinery and, as a result of their lack of experience, may take longer to acquire the knowledge necessary to be fully aware of potential risks. The students may also lack maturity and general experience of a working environment.

[52] Those with responsibilities to supervise secondary school students have an essential duty to ensure that risks to safety are eliminated, particularly where highly dangerous machinery is in use. In McDonald's , for example, the Court stated that (at 452):

The defendants conduct a very large enterprise operating throughout New South Wales and a variety of potentially dangerous equipment is used in their restaurants. The defendants identified that their enterprise involved the employment of a large number of young persons, such as the deceased, with little or no previous work experience. In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations. 17 All of these matters, that is, the existence of a risk to safety which was known but in relation to which no steps were actively taken to obviate the risk and the particular vulnerability of young, inexperienced school children to risks to safety arising from the operation of unguarded or inadequately guarded machinery, highlight the seriousness of this offence. 18 Another factor which serves to highlight the seriousness of the offence concerns the ease with which the risk could have been avoided. Notwithstanding that the guillotines were neither manufactured nor supplied with rear guarding, a very simple measure which the defendant could have taken, particularly after the incident of 13 November 2000, would have been to remove all the unguarded guillotines so that they were no longer accessible to the students. This was in fact eventually done but not until some time in 2003 following the 22 May 2003 Memorandum to Principals. 19 It follows from the foregoing matters that general deterrence must also play a significant role in the sentencing process. It is of the utmost importance that employers utilising potentially dangerous machinery, particularly where such machinery is to be operated by young, inexperienced persons, are informed of their obligations under the occupational health and safety legislation not to expose such persons to any risks associated with the operation of such machines. 20 Specific deterrence also assumes an important role. This factor and its relevance to this defendant was the subject of comment by Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales (Department of Education & Training) at [53] as follows:

The defendant has responsibilities towards thousands of young students in schools throughout the State. It is necessary for the penalty imposed to compel the attention of the defendant to the level of vigilance required to ensure that its students, and employees, are not exposed to dangers as a result of its operations, particularly as a result of the presence of unguarded or otherwise unsafe machinery. 21 I agree with the sentiments expressed by his Honour and adopt them in these sentencing remarks. During the sentencing proceedings, the Court was informed that seventeen guillotines remain unguarded, although they are no longer accessible to the students. Nevertheless the defendant has condoned the continued use of these unguarded machines by staff members. This means that certain members of the defendant's staff continue to be exposed to the risk to safety which arises by reason of the absence of a guard. This is so notwithstanding that the students, at least as from the date of the Memorandum to Principals (22 May 2003) are no longer exposed to the risk. The continued threat to safety posed by the unguarded guillotines while they remain accessible to members of staff, is a factor I take into account in assessing the application of specific deterrence to the present proceedings. In my view, the actions of the defendant in condoning the continued use of the unguarded guillotines by members of staff renders the offence objectively more serious. 22 The seriousness of the risk to safety here is also illustrated by the injuries received by Miss Jafari. In addition, on the facts before the Court, the absence of a rear guard could have resulted in serious injuries including the amputation of any part of a hand or an arm that may be placed under or in the vicinity of the exposed blade. This latter factor also emphasises the seriousness of this offence. 23 According to the affidavit of Mr Johnson, prior to the accident the class which had been attended by Miss Jafari and Master Fayjloun were given specific instructions on safety which included the correct placement of sheetmetal onto the guillotine and checks that the students had the safety guard (at the front) in place and the sheetmetal secured before operating the treadle. Both students also, on 23 July 2002, had completed a general written test on safety in the technology room. A copy of an OHS instruction booklet was provided to students which included an instruction, "Be the only person to be using the machine at any one time". There is no suggestion, however, in relation to this latter instruction, that it had specifically been brought to the attention of any students. 24 The defendant, therefore, had in place some system designed for the safety of students who operated machinery in the technology room, although, in relation to the incident, the subject of the offence, that system was implemented in the context of an unguarded guillotine which posed a serious risk to safety. Nevertheless, I take into account in the defendant's favour, that it had in place, at the time of the offence, a limited system designed to ensure the safety of students operating the unguarded guillotines. 25 The defendant has prior convictions under the Occupational Health and Safety Acts 1983 and 2000 which means it faces a maximum penalty of $825,000. 26 The prior convictions are lengthy and two at least involve injuries sustained to students from unguarded machinery. I have already considered this factor and taken it into account in these sentencing remarks. The number of prior convictions must nevertheless in my view be assessed by reference to other mitigating factors. These factors include the size and extent of the Department of Education & Training's operations. Mr Johnson in his affidavit has advised that the Department which administers the New South Wales government school system had in 2002, approximately 754,000 students attending 2,237 government schools. Some 51,100 teachers and 11,353 support staff were employed in the schools by the Department at that time. I therefore consider, having regard to the size and extent of the Department's operations, that its overall record is reasonably good. I should add for completeness, if it is necessary, that my assessment of the record of prior convictions is based on the overall record of the Crown, not just the Department's record: see WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in Right of the State of New South Wales at [61], [63], [71]. 27 Mr Johnson's affidavit also sets out a number of safety measures instituted by the defendant prior to and following the offence. These measures include:

(i) School Building Services & Equipment Maintenance Guidelines for school principals which include maintenance of industrial arts equipment in schools;

(ii) in September 2001, the Equipment in Schools Committee was established (the Committee). It is responsible for ensuring that school equipment complies with the occupational health & safety legislation;

(iii) Guidelines for Use of NSW Supply Contract 027/7232 were distributed to schools on 12 May 2003. These Guidelines require that all schools purchase machine tools in accordance with a contract for the supply of machine tools to schools, which was established by the Committee. This particular contract requires risk assessments to be undertaken by a machine safety specialist. The contract also includes a specification for sheetmetal guillotines which includes requirements for rear guarding and being fitted with a locking device to stop unauthorised use;

(iv) the Committee advises teachers in industrial arts subjects in relation to the risk assessment process for school equipment, and, has compiled a list of prohibited items of plant in schools;

(v) the development of auditing procedures for the purchase of machine tools;

(vi) fitting a rear guard to the guillotine which was the subject of the offence;

(vii) sending out the 22 May 2003 Memorandum which notified schools that contractors would commence to install additional guards on sheetmetal guillotines and that in the interim period, the guillotines would not be accessible to students. The Memorandum also reminded staff that the tandem operation of guillotines was prohibited and treadles must be locked when the machine was not in use;

(viii) arranging the manufacture of rear guards for guillotines at a cost of $409,000.00. Seventeen guillotines were unable to have rear guarding installed and were removed so that students could no longer have access to them;

(ix) preparing and distributing OHS Bulletins to all schools including a Bulletin issued in August 2001 entitled "Guarding of Equipment and Machinery";

(x) issuing a memorandum to principals and district superintendents on 14 January 2003, entitled "Safe Use and Guarding of Plant in Schools", which reminds persons concerned that guards must be in place while machinery and equipment are operational. 28 These safety measures all serve to mitigate the seriousness of the offence and will be taken into account in the assessment of penalty. 29 I also take into account in the defendant's favour the fact that it cooperated fully with the WorkCover Authority during the investigation. This issue has been conceded by the prosecutor in oral submissions. 30 There also seems to me to be no dispute that the plea of guilty was entered at an early stage by the defendant. This will be reflected in an appropriate discount in accordance with the principles set out in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. In my view, the appropriate discount is 25%. The early plea is also reflective of contrition on the defendant's part and this will be taken into account in its favour. The defendant has also indicated its sincere regret for the injury to Miss Jafari and any disability she may suffer as a consequence. Penalty

31 In determining penalty against the defendant, I have taken into account the objective seriousness of the offence, the personal factors outlined above and the record of prior convictions. All of these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999, in particular, s 21A. Orders

32 In Matter No IRC 5696 of 2004, I make the following orders:

(2) The defendant is fined $115,000 with a moiety thereof to the prosecutor.

(3) The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. _________________________

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