17 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question. Aggravating and mitigating factors must also be considered.
18 The evidence well demonstrated why the defendant pleaded guilty to this charge. The offence was a serious one. The agreed facts showed that the risk to safety posed by a person coming into contact with an unguarded nip point during the course of maintenance work on the conveyer belt, was not only foreseeable, but foreseen, given that the nip point was guarded, albeit inadequately and that a cut off switch had earlier been removed from the machine. Most regrettably, the obvious risks to safety present from this conjunction of circumstances materialised, as the defendant accepted. It was agreed that the work had been previously performed by Mr Jones. He had, however, never been trained in how to perform the work safely; he performed the work unsupervised and the defendant had not turned its attention to any assessment of, or instruction in, how the work might be performed safely.
19 The risks which might result from the unsafe work practices adopted were serious, obvious and regrettably materialised in circumstances where Mr Jones finally lost his arm, after unsuccessful attempts at healing his extensive injuries.
20 The defendant's plea of guilty and the submissions advanced at the hearing, accepted the seriousness of the offence and its consequences. The evidence also showed the prompt attention paid to the risk which the accident had so graphically highlighted. I accept that the defendant's contrition and remorse for its failures was demonstrated thereby and by the assistance it provided Mr Jones. The assistance provided to the prosecutor and the early plea of guilty entered, must also be considered.
21 In this case, I take the view that both specific and general deterrence must have a role to play in the penalty imposed. As to specific deterrence, I note that the defendant no longer trades; has no employees and no intention of trading in future. After the accident, a new company was established, which set up a new milling business. Some of the defendant's assets were transferred to that company and it employs some of the defendant's former employees. Nevertheless, the evidence led by the defendant, such as it was, showed that the defendant has not been wound up and could recommence trading, if it wished. Winding up has been investigated, but seemingly has been a step not taken, while accounting investigations into the defendant's position continue. On the evidence, I accept that it is not likely that the defendant will trade again, but am unable to entirely exclude the element of specific deterrence as an element of the penalty to be imposed, given that this still remains a possibility on the evidence as it stands. I do accept in these circumstances, however, that specific deterrence has a much lesser role to play than would have been the case, if the defendant had continued operating the mill business.
22 The defendant accepted the need for general deterrence to operate as an element of the penalty imposed, understandably in the context where the defendant's directors now operate a new milling business in their roles as directors of the new company.
23 This is the defendant's second offence, having earlier been fined $10,000 by the Chief Industrial Magistrate in the context of another offence involving an unguarded machine and an injury to an employee's hand. It is in that context that the defendant faces a maximum penalty of $825,000. The earlier offence is also relevant to an assessment of the penalty in this case, as the defendant accepted.
24 There was some evidence of the defendant's financial circumstances. A document prepared for these proceedings showed that the defendant had assets, in the form of some $237,041 owing to it. Mr Holckner had not prepared the document and was unable to explain its real import. None of the defendant's financial records were tendered. It follows that this material was of relatively limited assistance in establishing the defendant's actual financial position, so that the provision made in s6 of the Fines Act 1996 could be given effect.
25 In any event, as the Full Court observed in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at 446 a defendant's financial position needs to be carefully scrutinized and a defendant's financial resources do not necessarily preclude a heavy penalty being imposed.
26 I am satisfied, on all of the evidence, that this offence must result in a significant penalty. This is yet another case where an unguarded nip point has resulted in a serious injury, in circumstances of inadequate training and supervision in obviously dangerous work, given the state of the machinery and the work required to be performed. Mr Jones has suffered a most serious injury. It is not anticipated that he will be able to resume work for two years. The obvious and serious risks here in question, have actually materialised. Those risks were plainly foreseeable and foreseen, yet the defendant failed to take available steps which would have excluded them. There was no suggestion that there was any difficulty in the machine being guarded, as it was after the accident. There was no suggestion that there was anything which precluded proper assessment, training or supervision of the maintenance work being performed at this mill every two weeks, which would also have ensured that the risk was excluded.
27 That those steps were not taken by a defendant already convicted of an earlier offence in relation to a failure to guard machinery, means that the leniency which might otherwise have been available to an employer with no record, is not available.
28 I have concluded that a penalty of $123,750 is the appropriate penalty in all of these circumstances. In coming to this figure, I have taken into account the various mitigating factors which I earlier mentioned, as well as the other matters earlier dealt with, which must be weighed in the sentencing process. In reaching that figure, I took the view that the defendant was entitled to a significant discount for the mitigating matters I discussed, including in relation to the utilitarian savings of the plea entered at the earliest opportunity.
29 Account must be taken of the High Court's approach in Markarian, although, as Boland J observed in Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd [2005] NSWIRComm 222, the decision in R v Thomson, R v Houlton (2000) 49 NSWLR 383, is a guideline judgment of which account must be taken in accordance with s42A of the Crimes (Sentencing) Procedure Act 1999. (See State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at [45].)
30 In this case, I take the view that it is appropriate to indicate that in respect of the utilitarian savings achieved from the entry of the early plea, I approached the determination of penalty by applying a discount of 25% for that factor, to the penalty which I had otherwise determined appropriate having regard to all of the other matters I have dealt with, including matters of aggravation and mitigation. I am satisfied that justice is best served by making this approach clear, given the interests of victims, the parties, appeal courts and the public, in an understanding of how penalties in proceedings such as this are determined, when early pleas of guilty are entered. In my view, this is of significant public interest in the administration of justice in prosecutions brought under the Act.
31 I also observe that Boland J took a similar approach in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 and Kavanagh J in Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192.
Orders