Inspector Dall v Ullrich

Judgment 1These proceedings involve a prosecution instituted by Inspector Michael Dall ("the prosecutor") against Gilbert William Ullrich ("the defendant"). Inspector Dall is an inspector of the WorkCover Authority of New South Wales and is authorised by s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute proceedings. 2Gilbert William Ullrich is the Chief Executive Officer and a director of Ullrich Aluminium Pty Ltd ("Ullrich Aluminium" or "the corporation"), a corporation whose registered office is situated at 185 - 187 Woodpark Road, Smithfield in the State of New South Wales. Mr Ullrich has been a director of the corporation since 1988. 3Ullrich Aluminium is a manufacturer and supplier of aluminium products. It commenced business in Australia in 1988 and currently conducts wholesale, retail and warehousing operations in over 47 branches across Australia and New Zealand. It employs approximately 330 people in Australia and 400 in New Zealand. 4The corporation occupies and controls a warehouse facility at 6 Steel River Boulevard, Mayfield, a suburb of Newcastle ("the Mayfield warehouse"), where it employs up to 26 people from time to time. 5This prosecution arose following a fatal incident on 3 September 2007 at the Mayfield warehouse involving an employee of Ullrich Aluminium, Troy Murrell-Voigtlander (known as "Troy Murrell"). Mr Murrell worked as a storeman at the Mayfield warehouse and had been employed in that position for about seven to eight months prior to the date of the incident. In his role, Mr Murrell also provided training and supervision to new storemen who commenced working at the warehouse. 6At the time of the incident, Ullrich Aluminium stored large quantities of aluminium product at the Mayfield warehouse, including cases of aluminium product which were stacked in bulk storage racks. The aluminium cases consisted of plastic wrapped aluminium extrusions placed on a pine board base and covered with a cardboard top sheet. Wooden boards were then attached to form a border between the pine board base and cardboard top sheet to complete the 'case'. The cases varied in size, but were typically approximately four metres long, 300 to 400 mm wide, and 200 to 300 mm deep. 7Each bulk storage rack was designed to hold five rows of aluminium cases across the base. Two vertical supporting bollards were situated along the length of the outermost aluminium cases, on either side of each bulk storage rack. Each row of cases was then stacked to the height of the supporting bollards (approximately 2.6 metres high). There were no additional bollards or other supporting structures between the stacks of cases within each bulk storage rack. 8Aluminium cases were moved into, out of and within bulk storage units by the use of a pendant controlled, electric overhead travelling "Demag" crane. The crane carried fibre slings which were slung around each end of an aluminium case. Once the slings were in place, the crane was used to lift and move the case to the desired position. 9On the day of the incident, Mr Murrell and another employee, Christopher Crawford, were "picking and packing" aluminium products for orders. The task required the two men to move cases from stacks in the middle of storage rack 'WB03' and place them on adjacent stacks within the same rack using the crane. This was done for the purpose of obtaining access to particular aluminium cases needed to fill an order. On that day, WB03 contained approximately 36 aluminium cases, each weighing between 66 to 331 kilograms. 10At approximately 12.30 pm on the day of the incident, Mr Murrell was operating the crane when one of the attached fibre slings fell between two stacks of cases in the middle of WB03. Mr Murrell entered about two metres into a gap between two stacks within WB03 to retrieve the sling. Mr Crawford called out to Mr Murrell words to the following effect: "well you told me to be safe, I wouldn't be standing there" or "I wouldn't be standing there if I was you". At that moment, the three middle stacks of aluminium cases collapsed towards the western end of WB03 in a domino effect, crushing Mr Murrell. Mr Crawford and several other employees manually lifted six or seven cases and pushed several others in order to free Mr Murrell. Mr Murrell ultimately died as a result of his injuries. 11A similar incident had occurred previously, on 21 February 1996, at a warehouse operated by the corporation in Smithfield, New South Wales. On that occasion, a stack of unrestrained aluminium cases collapsed, striking and fatally injuring an employee, Darren Gasciogne, whilst he was in the course of picking and packing stock in close proximity to the stack. Following that incident, the corporation introduced bulk storage racks at Smithfield, the same style of which were in use at the Mayfield warehouse at the time of the 2007 incident. 12There had also been further instances of aluminium cases collapsing at other Ullrich Aluminium branches (which had not resulted in injury), prior to the incident at the Mayfield warehouse. 13In 2006, Ullrich Aluminium determined to undertake a review of racking across all of the corporation's branches. The WorkCover Authority had been notified of the review by Dale Hutton, the corporation's health and safety coordinator. 14An alternative racking system, which provided for the bulk storage of aluminium cases in single stacks separated by vertical bollards, was being trialled in the corporation's South Australian warehouse prior to the incident at the Mayfield warehouse in 2007. 15At the time of and leading up to the incident at the Mayfield warehouse, Ullrich Aluminium did not have in place any formal, documented job safety analysis or safe work method statement with respect to the bulk storage and handling of aluminium cases. Workers were provided, in this respect, with informal, undocumented "on the job" training including oral directions that they were not to enter into the confines of the bulk storage racks. It was common practice for workers to utilise a piece of timber with a nail in one end to hook and retrieve slings which had come to rest within the racks. However, from time to time, workers would walk between stacks of aluminium cases within the bulk storage racks to recover slings. 16Prior to the incident, there had been no formal risk assessment conducted relating to the use of the bulk racking system, in particular the use of the overhead cranes and sling system, at the Mayfield warehouse. Some workers at the Mayfield warehouse had been provided with formal, documented training on the use of the overhead crane and assessed as to their competency by Ullrich Aluminium. Mr Murrell had not received such training and neither Mr Murrell nor Mr Crawford had been assessed by the corporation as competent in their use of the crane. 17Following the incident, Ullrich Aluminium installed a new racking system across all its branches, including the Mayfield warehouse, which incorporated vertical bollards between single stacks of aluminium cases. The corporation has also implemented safe work method statements, in particular one which addresses the procedure for loading and unloading bulk storage racks using the overhead crane and which notes specifically that workers are not to step within bulk storage racks under any circumstance. Formal, documented skills-based competency training for all workers required to use the overhead crane in the course of their work has also been introduced. The corporation also reinstated tool box meetings, employed a senior occupational health and safety supervisor and prepared and developed an occupational health and safety system overview, a health and safety plan and a risk management index of procedures. 18The charges brought against the defendant will be described in more detail below. The defendant was charged in his capacity as a director of the corporation, Ullrich Aluminium, as opposed to his role in management. The charges were laid under ss 8(1) and 8(2) of the Act by virtue of s 26(1) of the Act. The defendant entered a plea of guilty to the charges brought against him. 19In addition to Mr Murrell, other employees and non-employees of Ullrich Aluminium were particularised as being at risk. The risk specified in the charges was the risk of being struck, trapped and/or crushed by falling cases of aluminium product. The failures of the defendant particularised variously concerned a failure to fit bulk storage racks with vertical bollards or other means of support between stacks of aluminium cases; a failure to provide a safe system of work in relation to the recovery of slings which had come to rest within the confines of a bulk storage rack; a failure to adequately address the risk associated with a collapse of aluminium cases within the bulk storage racks; and a failure to provide employees with adequate information and training in relation to the recovery of slings. 20The corporation was charged under ss 8(1) (Matter No IRC 692 of 2010) and 8(2) (Matter No IRC 691 of 2010) in relation to the incident, and was convicted of each offence in the judgment of Boland J, President, delivered on 25 November 2011, in Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156. The corporation was fined in the sum of $350,000 for the s 8(1) offence and $250,000 for the s 8(2) offence with moieties to the prosecutor for each offence.

The Charges 21The defendant was charged with one breach of s 8(1) and one breach of s 8(2) of the Act by virtue of s 26(1) of the Act. The charge under s 8(1) of the Act (Matter No IRC 692 of 2010) was set out in the amended application for order in the following terms: I, Inspector Michael Dall, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth St, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under section 106(1)(c) of the Act to institute proceedings in this matter allege that Gilbert William Ullrich (Date of Birth: 7 September 1940), of 154 Redoubt Road, Manukau, Auckland in New Zealand ("the defendant"), being a director of a corporation, Ullrich Aluminium Pty Ltd [ ACN 001 697 445 ] ("the corporation"), whose registered office is situated at 185-187 Woodpark Road, Smithfield, in the State of New South Wales, by virtue of section 26(1) of the Act, is taken to have contravened section 8(1) of the Act, in that the corporation, being an employer, on 3 September 2007 at 6 Steel River Boulevard, Mayfield West in the State of New South Wales FAILED TO Ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of all the corporation's employees, and in particular, Troy Murrell-Voigtlander (also known as 'Troy Murrell') contrary to section 8(1) of the Occupational Health & Safety Act 2000. 22The particulars of the charge were specified as follows: Particulars of the Corporation's Acts and Omissions and of the Risk 1.At all material times the corporation was an employer. 2.At all material times the corporation employed Troy Murrell-Voigtlander ("Mr Murrell"). 3.At all material times the corporation operated and controlled a warehouse located at 6 Steel River Boulevard, Mayfield West in the State of NSW ('the Mayfield site'). 4.The corporation stored large quantities of aluminium product in the warehouse and in particular, stored "cases" of aluminium product stacked in various "bulk storage racks" located throughout the warehouse at the Mayfield site. 5.The packing on the "cases" of the aluminium product consisted of wooden boards, 55 mm wide by 11 mm thick, forming a rectangular border around cardboard, with the product inside the cases secured with 19 mm steel banding. 6.The "cases" of the aluminium product varied in length and configuration depending on the product but, most commonly the cases stored in the "bulk storage racks" were approximately 4 metres in length and 300 to 400 mm wide and varying depths, generally between about 200 to 300 mm. 7.In addition to whole "cases", open "cases" from which product had been extracted were also stored in the "bulk storage racks". 8.Each of the components used by the corporation to make up "bulk storage racks" at the Mayfield site, including the "bulk storage rack" identified by the corporation as "WB03", consisted of: a base made from a piece of steel channel, inverted in a "U" position, and measuring approximately 150 mm x 75 mm x 2.710 m long which lay on the floor of the warehouse unsecured; and two yellow 100 mm in diameter cylindrical steel bollards, 2.6 metres in length, welded to the top of each end of the steel channel. Two of these components were used to make up each of the "bulk storage racks" within the warehouse. 9.Each "bulk storage rack" was designed to accommodate five rows of cases across the base and then stacked to the height of the end bollards (i.e. 2.6 metres high). 10.The "bulk storage racks" did not incorporate vertical bollards, or any other vertical means of support and/or segregation, between the stacks of cases within each rack. The Risk 11.At all material times, employees of the corporation who worked in the bulk storage areas of the warehouse, in particular, Mr Troy Murrell, were at risk of being struck, trapped and/or crushed by falling cases of aluminium product. Particulars of the Acts and/or Omissions of the Corporation: Plant 12.The corporation should have ensured but, failed to ensure that plant, namely the "bulk storage racks" provided for use by employees at work at the Mayfield site, were safe and without risk to health when properly used in that: (i)The corporation should have provided but, failed to provide "bulk storage racks" for the storage of "cases" of aluminium product which incorporated vertical bollards and/or such other means of support and/or segregation between stacks of cases within each of the "bulk storage racks" designed to prevent the collapse of product, within each bulk storage rack, of the "cases" of aluminium product; (ii)The corporation should have undertaken but failed to undertake a site specific risk assessment with respect to the design of the bulk storage racks which included an assessment of the risks associated with the stacking of "cases" of aluminium product within subject racks. System of Work 13.The corporation should have provided and maintained but, failed to provide and maintain a safe system of work at the Mayfield site in relation to the stacking, rigging, lifting and movement of "cases" of aluminium products into and/or out and/or within the subject bulk storage racks in that: (i)The corporation required its employees, including Troy Murrell, to use an overhead crane, in combination with slings, to rig, lift and move cases of aluminium product into and/or out of its bulk storage racks and also to move cases of aluminium products within the confines of its bulk storage racks; and (ii)As a consequence of the design of the slings provided by the corporation for use in the movement of cases of aluminium product into and/or out of the bulk storage racks and within the confines of those racks, from time to time the slings came to rest within the confines of the racks. (iii)The corporation should have provided and maintained but did not provide and maintain a safe system of work for the recovery of the slings used to rig the cases to the overhead travelling cranes (used to move the cases into, out of and within the bulk storage racks) when those slings came to rest within the confines of a bulk storage rack, in particular, the corporation should have ensured but failed to ensure that the corporation's employees did not enter into the subject rack to retrieve the slings. (iv)The corporation should have ensured that the design of the slings used to rig, lift and move the cases of aluminium product in combination with the overhead crane was such that the slings would not come to rest within the confines of the bulk storage racks. (v)The corporation should have provided but, failed to provide its employees, including Mr Murrell, with a written work method statement, or safe operating procedure, with respect to the rigging, lifting and/or movement of "cases" of aluminium product into and/or out of and/or within the bulk storage racks at the Mayfield site that: a.described how the work was to be carried out, step by step; b.identified the work activities assessed as having risks; c.identified the subject safety risks; and d.described the control measures that were to be applied to the subject work activities to control the identified risks, including but not limited to the control measures to be applied for the purpose of controlling and/or minimising the risk of workers being struck by and/or crushed by "cases" of aluminium product whilst the employees were engaged in the tasks of rigging, lifting and moving product into and/or out of and/or within the bulk storage racks at the Mayfield site. Risk Assessment 14.The corporation failed to adequately address the risk associated the storage of "cases" of aluminium product in the bulk storage racks at Mayfield, including the risk associated with a collapse of "cases" of aluminium product within the confines of those racks in that: (i)The corporation failed to undertake a specific formal risk assessment at the Mayfield site with respect to the risks identified in the internal memorandum dated 6 October 2006, from Phillip Wareham, entitled "Bulk Safety Storage" which assessment should have been undertaken following the distribution of Mr Wareham's memorandum dated 6 October 2006; (ii)The corporation failed to adequately consult with its employees at the Mayfield site, including Mr Murrell-Voigtlander, regarding the risk associated collapses of "cases" of aluminium product within the bulk storage racks at the site; (iii)The corporation should have ensured that the matters raised in Mr Wareham's memorandum dated 6 October 2006 were brought to the attention of the Occupational Health and Safety Committee at the Mayfield site and to employees involved in the handling, rigging, lifting, movement and stacking of "cases" of aluminium product in to and/or out of and/or within the bulk storage racks at the Mayfield site. Information and Training 15.The corporation should have provided but, failed to provide its employees, in particular Mr Murrell, with such information and/or training as was necessary to ensure its employees' health and safety at work, and in particular the health and safety of Mr Murrell, in that: (i)The corporation, at all material times, required or permitted Mr Murrell to operate its pendant operated Demag overhead travelling crane, identified as "crane 3" for the purpose of lifting, moving and stacking "cases" of aluminium product in to and/or out of and/or within the bulk storage racks at the Mayfield site. (ii)The corporation should have provided but, failed to provide Mr Murrell with adequate training and information with respect to the safe use and operation of the subject crane to lift, move and/or stack "cases" of aluminium product in that the corporation failed to provide Mr Murrell with adequate information and/or training with respect to the recovery of the slings used in conjunction with the overhead crane to lift, move and/or stack "cases' of aluminium product when, from time to time, the subject slings would come to rest within the confines of the bulk storage racks at the Mayfield site. As a result of the corporation's failures and omissions, Troy Murrell was placed at risk of serious injury or death, and was fatally injured. 23The charge under s 8(2) of the Act (Matter No IRC 691 of 2010) was set out in the amended application for order in the following terms: I, Inspector Michael Dall, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth St, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under section 106(1)(c) of the Act to institute proceedings in this matter allege that Gilbert William Ullrich (Date of Birth: 7 September 1940), of 154 Redoubt Road, Manukau, Auckland in New Zealand ("the defendant"), being a director of a corporation, Ullrich Aluminium Pty Ltd [ ACN 001 697 445 ] ("the corporation"), whose registered office is situated at 185-187 Woodpark Road, Smithfield, in the State of New South Wales, by virtue of section 26(1) of the Act, is taken to have contravened section 8(2) of the Act, in that the corporation, being an employer, on 3 September 2007 at 6 Steel River Boulevard, Mayfield West in the State of New South Wales. FAILED TO Ensure, by the corporation's acts or omissions as particularised below, that persons other than the corporation's employees, in particular Chris Crawford, were not exposed to risks to their health or safety arising from the conduct of the corporations undertaking while they were at the corporation's place of work, contrary to section 8(2) of the Act. 24The particulars of the charge were largely in the same terms as the particulars of the charge under s 8(1) (set out above). 25The defendant pleaded guilty to the amended charges.

Agreed Statement of Facts 26An agreed statement of facts was tendered and was in the following terms: 1.The prosecutor, Inspector Michael Dall, is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under section 106(1)(c) of the Act to institute proceedings in these matters. 2.The corporation, Ullrich Aluminium Pty Ltd, is and, at all material times, was a corporation, whose registered office is situated at 185-187 Woodpark Road, Smithfield, in the State of New South Wales ("the corporation"). 3.Gilbert William Ullrich is and, at all material times, was a director of the corporation. 4.At all material times the corporation, trading as "Ullrich Aluminium", operated a trans-Tasman aluminium manufacturing and distribution business with over 47 branches in both New Zealand and Australia, with branches located in all Australian States and Territories. 5.At all material times the corporation operated and controlled a warehouse located at 6 Steel River Boulevard, Mayfield West in the State of NSW ("the Warehouse"). 6.At all material times the corporation employed William Duncan (Branch Manager, Newcastle) to manage the Warehouse. 7.At all material times, the corporation also employed two supervisors Peter Inskip (Warehouse Manager) and John Wilmott (Assistant Warehouse Manager) at the Warehouse, together with approximately 10 staff, both employees and contract labour, retained to carry out day to day operations within the Warehouse. THE DECEASED 8.As at 3 September 2007 the corporation employed Troy Murrell-Voigtlander, also known as "Troy Murrell" at the Warehouse as a storeman. Mr Murrell had been employed in that position for about seven (7) to eight (8) months. 9.As a storeman, Mr Murrell's duties included picking and packing aluminium products for orders. This work involved the use of the corporation's Demag crane in the movement of crates of aluminium product into, out of and within bulk storage racks. Prior to his employment by the corporation Mr Murrell had experience as a store person at Ryco. 10.Prior to and as at 3 September 2007, Mr Murrell was considered by the corporation to be experienced in his field of work and he was utilised by the corporation to train and supervise new storeman, both employees and labour hire workers, when they commenced work at the Warehouse. The training which the corporation utilised Mr Murrell to provide to new storeman included the corporation's stock handling practices, the use of the corporation's overhead cranes and the movement of stock into, out of and within the bulk storage racks in the Warehouse using the corporation's overhead cranes. 11.Some employees, who had been trained by Mr Murrell, when spoken to after the incident, stated Mr Murrell had instructed them that it was not safe to enter into bulk storage racks and walk between stacks of cases; and also, that they were not to do so. 12.Prior to the incident John Willmott had instructed some Warehouse staff not to enter into the bulk storage racks. 13.Mr Murrell was a member of the corporation's safety committee and he was undergoing safety committee and consultation training at the time of the incident. MR CHRISTOPHER CRAWFORD 14.At all material times, Mr Christopher Crawford ("Mr Crawford") was employed by a labour hire company trading as "Select Industrial". 15.At all material times, Mr Crawford was assigned by Select Industrial to work as a storeman at the corporation's Warehouse. Mr Crawford had commenced work at the Warehouse 3 days prior to the incident. 16.On the day of the incident, Mr Crawford had been assigned to assist Mr Murrell in "picking and packing" orders. 17.In the course of his record of interview Mr Crawford giving the following answers to the following questions: "Q100.Okay. All right. So what happened? Forgotten where I was. Yeah, he was, basically he was telling me to be safe being up the side of there and I pulled the sling out and I came down, and I don't know why or how, but his sling sort of ended up in the middle of the pallets, and he's walked in to get it. I said well you told me to be safe, I would be standing there, and basically, it's just come down on top of him." And: "Q164. Been on the southern side [of the bulk storage rack]? Yeah, 'Cause that's where Troy was originally before he went to get the sling. Q165. So he was outside, he was outside the, the bollard? Yeah. Q166. The storage on the southern side? Yep. Q167. Okay. And then he's walked into [the bulk storage rack] on the south western side. Is that correct? Yeah. Q168. Okay. So he's walked into that particular storage area, which is W03. To remove or to get a sling? Yeah. Q169. Is that correct? That's correct. Q170. All right. Did you say anything to him? Yeah. At the time I did. Q171. What, what did you say to him? I said I wouldn't be standing there if I was you. Q172. Did he reply anything to you? No, he didn't have a chance." THE "CASES" OF ALUMINIUM PRODUCT 18.At the time of the incident, the corporation stored large quantities of aluminium products within the Warehouse, including the bulk storage of "cases" of aluminium product which were stacked in various "bulk storage racks" located throughout the Warehouse. 19.The "cases" of aluminium product consisted of a pineboard base on which plastic wrapped aluminium extrusions are placed; a top sheet is placed over the top of the aluminium extrusions; and this "sandwich" (consisting of the pineboard base, the aluminium extrusions and the top sheet) was bound with wooden cleats (or gluts) secured with steel banding. The wooden cleats on the "cases" of the aluminium product consisted of wooden boards, 55 mm wide by 11mm thick, forming a rectangular border around the cardboard top sheet and pineboard base, with the product inside the "cases". The steel banding used to secure the "cases" was 19 mm wide. 20.The "cases" of the aluminium product stored in the Warehouse varied in length and configuration depending on the product. The lengths of aluminium ranged from 1.190 to 7.4 metres in length and the dimensions of the cases varied depending upon the dimensions of the product they housed. However, most commonly, the cases stored in the "bulk storage racks" were approximately 4 metres in length and 300 to 400 mm wide with the depth of the cases varying, generally, from about 200 to 300 mm. 21.In addition to whole "cases", open "cases" from which product had been extracted were also stored in the "bulk storage racks BULK STORAGE - INCLUDING RACK WBO3 22.The components used by the corporation to make up "bulk storage racks" at the Warehouse, including the "bulk storage rack" identified by the corporation as "WB03", consisted of: a.a base made from a piece of steel channel, inverted in a "U" position, and measuring approximately 150 mm x 75 mm x 2.710 m long which lay on the floor of the Warehouse unsecured; and b.two yellow 100 mm in diameter cylindrical steel bollards, 2.600 m in length, welded to the top of each end of the steel channel. 23.Two of these components were used to make up each of the "bulk storage racks" within the Warehouse. 24.Each "bulk storage rack" was designed to accommodate five rows of cases across the base and then stacked to the height of the end bollards (i.e. 2.6 metres high). 25.The "bulk storage racks" did not incorporate vertical bollards, or any other vertical means of support and/or segregation, between the stacks of cases contained within each rack. 26.To remove or store the "bulk" aluminium product contained in the Bulk Storage Racks, workers, including Mr Murrell, utilised a pendant controlled electric overhead travelling "Demag" crane with fibre slings that were slung around each end of the cases of Aluminium product. Once the slings were in place around each end of a case, the crane was used to lift and move the case to the desired position. 27.Bulk Storage Rack WB03 was located on the south western side of the Warehouse. 28.At the time of the investigation of the incident involving Troy Murrell Bulk Storage Rack WB03 contained approximately thirty-six cases of aluminium product. 29.At the time of the incident, generally, the cases stored in WB03 were approximately 4.000 m in length, 300 mm to 400 mm in width and 200 - 300 mm in depth. Some the cases differed in length; or were otherwise differently configured. 30.At the time of the incident, each of the cases stored in WB03 displayed weights ranging between 66 kg to 331 kg, with the disparity of weight per case due to difference in length and configuration of their contents. 31.Horizontally, WB03 contained five stacks of the cases described above. 32.At the time of the investigation, vertically, each of the "outside" stacks [i.e. the 'eastern' and 'western' stacks] consisted of seven or eight of these cases of different depth. The three middle stacks had collapsed progressively towards the western end of WB03. 33.In the immediate lead up to the incident Mr Murrell and Mr Crawford moved pallets from stacks in the middle of WBO3 and placed those pallets onto other, adjacent, stacks within the same rack. In the immediate aftermath of the incident, in an attempt to free Mr Murrell from the collapsed cases members of the Warehouse staff moved cases within WB03. THE INCIDENT 34.At approximately 12.30 pm, Monday 3 September, Mr Murrell was working with Mr Crawford. Mr Murrell and Mr Crawford were using the corporation's Demag crane to reposition 'cases' of aluminium product (shower screen sections) within Bulk Storage Rack WB03 for the purpose of obtaining access to particular cases of aluminium product located within that rack, the contents of those cases being required to fill orders that Mr Murrell and Mr Crawford were in the process of "picking and packing". 35.Prior to the subject incident, Mr Murrell and Mr Crawford used the Demag crane to re-stack cases within WB03, removing cases from the 2 stacks adjacent to the western-most stack within WB03 onto the other 2 stacks within WB03 to the east. 36.Immediately prior to the incident, with the Demag crane located above WB03, Mr Crawford was detaching the slings from one of the cases located within WB03. Mr Crawford climbed up one of the stacks to detach that sling. 37.Mr Murrell then entered about 2 metres [about halfway] into the gap that had been created in WB03 between the stacks to retrieve the other sling attached to the crane, as that sling was apparently hanging from the crane hook, in the middle of the cases, about halfway into WB03. 38.Whilst Mr Murrell was retrieving the sling, Mr Crawford and Mr Murrell exchanged words to the effect set out at paragraph 17 above. As Mr Crawford and Mr Murrell were speaking, several cases toppled onto Mr Murrell, trapping him and causing fatal crush injuries: a.the cases were stacked five or six high and five cases wide before they moved; b.some of the cases were damaged so that the stacks were described by Mr Crawford "dodgy", "unstable, "a bit unstable" and "didn't look safe"; c.Mr Murrell was about 2 metres into the rack [i.e. approximately halfway into WB03] with his left shoulder against the western-most stack of cases in that rack; d.one of the cases that toppled over onto Mr Murrell hit him in the chest and chin area, pinning him in a vertical position against the western-most stack; e.whilst trapped in this position Mr Murrell had raised his right arm parallel to his head to try and protect himself from the falling cases; and f.approximately eight to ten cases were pinned down on Mr Murrell like a 'domino effect'. 39.Mr Crawford then alerted other staff that Mr Murrell was trapped in WB03. 40.Once other staff were alerted, Mr Crawford was aided in removing the cases off Mr Murrell by the following staff: Glen Cocking (truck driver), Michael Bourke (storeman), Lee Boulton (machine operator), Dale Marko (storeman truck driver) and Peter Hopkins (sales representative). Mr Inskip was holding up Mr Murrell's head. 41.Approximately six to seven cases were manually lifted off Mr Murrell, whilst the remainder of the cases were pushed off him. 42.Once Mr Murrell was released from WB03, Mr Murrell was placed in a recovery position pending the arrival of Ambulance officers. Whilst in the recovery position Mr Murrell's vital signs were monitored, however, he did not respond to verbal prompts and no pulse could be found. THE CORPORATION'S FAILURES 43.At the time of the incident there was a risk that instability within a stack could result in cases collapsing within the confines of the bulk storage racks because the bulk storage racks used at the Warehouse did not incorporate bollards, or any other means of segregating, individual stacks of cases within a bulk storage rack. 44.Prior to the incident, the corporation was aware of the risk of stack instability and collapse. 45.On 27 June 2006, Dale Hutton, the Health & Safety Coordinator of the Ullrich Aluminium group based in Hamilton, New Zealand, informed WorkCover that the Ullrich Aluminium group was undertaking a review of racking at all of the corporation's branches. 46.On 6 October 2006, Phillip Wareham issued an Ullrich Aluminium Memorandum entitled "Bulk Storage Safety" in the following terms: "In some of my recent visits to branches I have noticed a few examples of what I consider to be unsafe bulk storage cases. A few basic points to keep in mind. 1.The steel "goalpost" dividers/stabilisers should be made from 100 mm by 40 mm square or round tube and a max of 2.5 meter (sic) high (see attached diagram) 2.These should be bolted to the concrete floor 3.Cases should not be stacked higher than the "goalpost" 4.Cases should be stacked as vertically as possible avoiding dangerous leans 5.If your branch is not complying with the above, please rectify ASAP, or if you have any issues or concerns re the above or any related matters please contact me. The safety of our people is worth more than the time or a few extra dollars we may need to pay. Best Regards PAW" 47.The corporation was aware prior to the incident that there had been collapses of cases of product within the bulk storage racks at the warehouse, albeit these prior incidents did not result in any injury. 48.Prior to the subject incident, an alternative racking system was being trialled in the corporation's South Australian warehouse which obviated the risk of stacks collapsing by providing for the bulk storage of cases of aluminium extrusions in single stacks, isolated by bollards. 49.In the period since the incident, the corporation has developed and installed a new racking system at the Warehouse. The new racking system incorporates bollards that separate each stack of cases and hence, eliminates the risk of stacks of cases collapsing with the racking system. 50.The investigation of the incident revealed that, prior to and at the time of the incident, the corporation did not have in place any formal, documented Job Safety Analysis (JSA), or Safe Work Method Statement (SWMS), with respect to the bulk storage and/or handling of cases of aluminium extrusions at the subject Warehouse; including the movement of cases into and/or out of bulk storage; and the transfer of cases within the bulk storage racks. 51.Prior to the incident, the corporation relied upon informal and undocumented "on the job" training with respect to the manner in which the bulk storage of cases of aluminium extrusions was performed within the Warehouse. 52.The informal work practices that were in place prior to incident included a direction that workers were not to enter within the confines of the bulk storage racks. 53.The informal work practices that were in use prior to and at the time of the incident included, at times, the use of a piece of timber with a nail in one end to hook and retrieve the sling. The informal work practices made no other provision for the recovery of the slings used to connect the cases to the overhead travelling cranes, used to move the cases into, out of and within the bulk storage racks, when those slings came to rest within the confines of a bulk storage rack. 54.Prior to the incident although provided with informal, oral warnings from the corporation not to walk between stacks of cases in the racks, from time to time, workers entered the racks, between rows of cases, to retrieve slings that came to rest within the confines of a bulk storage rack or, alternatively, individual workers developed ad hoc responses such as leaning into the racks from the side, or using a nail attached to a long piece of wood to hook the sling and pull out it to the edge of the rack. 55.Prior to the incident, Warehouse management was aware that the slings used in conjunction with the overhead travelling cranes to move the cases into, out of and within the bulk storage racks, from time to time came to rest within the racks and that, from time to time, workers entered into the racks to recover the slings. 56.Prior to the incident, the corporation took no steps to put in place any formal controls on entering or leaning into the racks and to provide a safe means of retrieving the slings if and when they came to rest within the confines of a bulk storage rack. Subsequent to the incident the corporation developed a documented system of work regarding the task of removing stock from the racks. The documented work system addresses the risk of slings coming to rest within the confines of a bulk storage rack and included the provision of a hook to enable staff to recover slings without having to enter within the confines of the bulk storage racks. 57.Prior to and at the time of the incident some workers in the Warehouse who used the overhead cranes in the course of their employment, including Mr Murrell, did not receive formal, documented training in the use of the overhead cranes; nor were there any formal systems of work in place to ensure that Mr Murrell, and Mr Crawford were competent in the use of the overhead cranes. Other workers, who operated the overhead crane at the Warehouse, had been assessed and recorded by the corporation as competent. 58.There was no requirement for operators of the overhead crane at the Warehouse to be assessed and certified under the Occupational Health and Safety Regulation 2001 (NSW). 59.Prior to the incident, the corporation did not audit the task of operating the overhead crane. 60.Workers who operated machinery requiring formal certification, such as forklifts, were appropriately trained and certified. 61.After the incident, the corporation introduced formal documented, skills-based competency training for all workers required to use the overhead cranes in the course of their employment. This training is provided by an appropriately qualified third party trainer and upon successful completion of the training, the third party trainer undertakes a competency based assessment and certification of the subject trainees. 62.Subsequent to the incident, the corporation developed a documented procedure (dated 21 September 2007) for the task of removing stock from racks. 63.Prior to and on 21 February 1996 the corporation occupied and controlled a warehouse located on premises known as 32 Victoria Street, Smithfield in the State of New South Wales. On 21 February 1996, a stack of unrestrained "cases" of aluminium extrusions at the corporation's Smithfield warehouse collapsed, striking and fatally injuring an employee of the corporation, Darren Gascoigne, whilst he was in the course of picking and packing stock in proximity to the subject stack of cases. 64.Following the above incident, as part of the corporation's response to it and, more particularly, in response to Prohibition Notices issued by Inspector James Ch'ng, the corporation designed and introduced the style of bulk racks which were in use at the Mayfield branch at the time of the incident leading to the death of Mr Murrell. The racks in use at the time of the incident were originally constructed for use in warehouse premises at Cardiff. Those racks were then transferred to the Mayfield site when the corporation moved its operations from the warehouse at Cardiff to the Warehouse at Mayfield. 65.Prior to the incident leading to the death of Mr Murrell, there had been no formal risk assessment conducted relating to the use of the bulk racking system at the Warehouse. In particular, the corporation had not adequately assessed the risks associated with the use of the overhead cranes and sling system in association with the racks, such that inadequate consideration had been given to the risks associated with the slings coming to rest and/or being caught within the confines of this style of rack. 66.Prior to the incident, the corporation had undertaken a review of the racking system in place in its Adelaide warehouse and, as noted above, a different system, in which individual stacks of cases were segregated by bollards or staunchions had been developed and installed in the Adelaide warehouse. THE ROLE OF THE DEFENDANT 67.The defendant was appointed as a director of the company on 1 August 1988 and has served continuously in that office since that appointment. 68.The defendant is the Chief Executive Officer of the company. 69.At all material times the defendant was aware that an incident had taken place on 21 February 1996 at the factory premises, occupied and controlled by the company, known as 32 Victoria Street, Smithfield in the State of New South Wales in which an employee of the company, Darren Gascoigne, sustained injury and died as a consequence of being struck by cases of aluminium product when an unrestrained stack of cases collapsed. 70.At all material times, following upon the incident on 21 February 1996 in which Mr Gascoigne sustained injury, the defendant was aware that the company had introduced racks of the kind which were being used in the bulk storage of cases of aluminium product at the company's premises at Mayfield West as at the date of the subject incident, including but not limited to the bulk storage racks known as WB03. 71.At all material times, the defendant was aware that the racks in use for the bulk storage of aluminium product at the company's premises at Mayfield West, including but not limited to WB03, did not make use of internal bollards between stacks of cases of aluminium product which would have prevented the collapse of stacks of cases of aluminium product within those racks. 72.At all material times the defendant was aware that on 27 June 2006 the company's occupational health and safety officer, Mr Hutton, had informed WorkCover that the company was undertaking a review of all of the racking in use at all of the defendant's branches. 73.At all material times the defendant was aware that racking was under trial at the company's Adelaide premises for the bulk storage of cases of aluminium product that incorporated vertical bollards between each stack of cases that prevented the collapse of the stacks. 74.At all material times the defendant knew that the racks used in the bulk storage of cases of aluminium product at the company's Mayfield premises had not been the subject of a review and that the said racks had not been modified to incorporate vertical bollards designed to prevent the collapse of stacks within the bulk storage racks or otherwise replaced with new racks which incorporated vertical bollards designed to prevent the collapse of stacks of cases within the bulk storage racks. 27An additional agreed statement of facts was tendered at the hearing of the matter which was in the following terms: Upheaval in the Warehouse Prior to September 2007 1.Between December 2006 and July 2007 a number of key personnel resigned from Ullrich's Newcastle branch as did the chief operating officer from the Australian head quarters located in Sydney. Those individuals who resigned took up positions with a rival company in the Hunter region. Among the staff who resigned were the Warehouse manager, a sales representative, the debtors/creditors clerk, all of the purchasing staff, a stores person and a truck driver. The chief operating officer who resigned took a head role in establishing a competing business in Newcastle. 2.One of the consequences of the loss of staff was that the Warehouse was overstocked. This occurred for two reasons, firstly there was a drop in sales and secondly a belief on Ullrich's part that immediately prior to resigning some of the staff deliberately overstocked the Warehouse in what was considered to be a form of commercial sabotage. 3.Another consequence was a vacuum at the Warehouse was created in terms of the skill base of the remaining workforce. To cope with the staff shortage Ullrich was forced to make increased use of labour hire resources. Safety Management Prior to September 2007 4.In the period leading up to September 2007 Bill Duncan (the Warehouse Branch Manager) had taken steps to create a safety committee at the Warehouse. To that end 5 employees, including Troy Murrell, had been sent to external safety committee training. Prior to the incident Troy Murrell had not completed his training due to missing the last day as a result of illness. 5.Prior to the incident toolbox meetings at the Warehouse were held on an irregular basis. 6.There was a policy within Ullrich prior to the upheaval (referred to above) to conduct safety meetings at the Warehouse. That policy was not adhered to following the Warehouse upheaval in late 2006 and early 2007. Safety Management Since September 2007 7.In the aftermath of the incident in September 2007 a senior OH&S professional was employed by Ullrich to oversee, review and where necessary implement new processes insofar as the health and safety aspects of the Ullrich interests in Australia were concerned. There was a lengthy and difficult process in locating a suitably qualified and available individual. In November 2009 Lynn Hart was employed to perform the above role. During the process of interviews approximately 12 candidates were interviewed before Lynn Hart was offered the job. 8.In the immediate aftermath of the incident Ullrich took the following initiatives at the Warehouse: a.Regular toolbox meetings were instigated. b.The Warehouse staff were trained in crane competency. c.The Warehouse staff received fire and emergency training. d.JSA and work method statements have been drafted in respect of each position in the Warehouse. e.An improved procedure was formulated, including the development of a kit, for the induction of all new workers at the Warehouse. f.The cleaning hours were changed so that the cleaning staff were not at the Warehouse unsupervised. New Bulk Racking System 9.Following the incident Ullrich took steps to completely redesign and reinstall the racking systems in place in the Newcastle Warehouse and make changes across its facilities in Australia. 10.In October 2007 Ullrich procured from EMA Consulting Engineers Pty Ltd an engineering report relating to the design and installation of a new racking system at the Warehouse. 11.The pendant controller for the crane at the Warehouse has been replaced by a remote control system to remove the risk associated with removing the pendant from within the bulk racks. 12.In total, Ullrich spent close to $1 million installing new racks around its branches to prevent a situation such as that which occurred in September 2007 ever happening again. This has included a significant re-racking and upgrading of the Newcastle Warehouse. 13.The welfare of staff is at the forefront of Ullrich's considerations and it continues look out for the need to upgrade facilities and processes where necessary to address this. 14.Since the incident on 3 September 2007 the defendant has undertaken steps, described by the Court in Inspector Dall v Ullrich Aluminium Pty Ltd [2012] NSWIRComm 156 at [64] as being "commendable", to ensure there is no recurrence of the contraventions that brought it before the Court. 15.Since the incident Ullrich has worked "diligently" (to use the words of the Court in Inspector Dall v Ullrich Aluminium Pty Ltd [2012] NSWIRComm 156 at [67], to improve its overall safety performance and has introduced a number of safety initiatives. These include: a.the employment of a senior occupational health and safety supervisor (Mr Hart); b.the development and installation of a new bulk racking system; c.the reinstatement of tool box meetings; d.the implementation of safe work method statements addressing inter alia the loading and unloading of bulk racks using an Overhead Bridge and Gantry Crane; e.the preparation of an Ullrich Aluminium Group occupational Health and Safety Management System Overview; f.the development of an Ullrich Aluminium Occupational Health and Safety Plan; and g.the preparation of an Ullrich Aluminium Operational Risk Management Index of Procedures. 16.Since the incident a Safe Work Method Statement for the task of "Lifting Packs with Overhead Bridge and Gantry Crane" has been developed by Ullrich. It makes clear that "[u]nder no circumstances" are workers to step into any area where packing could topple over. In addition, a long handled hook pole has been developed for use to recover slings.

28The prosecutor tendered a sentencing bundle containing the agreed statement of facts, a Factual Inspection Report of Inspector Dall dated 24 January 2008, 18 WorkCover photographs taken by Inspector Dall dated 3 September 2007, a memorandum from Phillip Wareham dated 6 October 2006, three emails, one colour photograph and a Prior Convictions Report for the defendant. The prosecutor also tendered a document entitled "Additional Agreed Facts" and a letter signed by Ernest Ullrich dated 1 June 1996. 29A Victim Impact Statement signed by Mrs Murrell, the mother of the deceased, dated 30 April 2012, was also handed to the Court. 30Mr P Ginters of counsel, for the defendant, relied upon the affidavit evidence of the defendant sworn on 10 May 2012 (paragraph 6 of the affidavit was struck). Some relevant paragraphs of the affidavit are as follows: 3.I have been involved in the aluminium products industry in New Zealand and Australia for approximately 50 years. ... 8.In the affidavits I filed in the Ullrich sentencing hearing I also referred (at paragraphs 30 to 39 of my primary affidavit filed 14 October 2011, marked Exhibit "A") to steps put in place after the incident on 3 September 2007, including the employment of a senior occupational health and safety professional to oversee, review and implement new occupational health and safety processes at Ullrich's Australian operations and the introduction of a new bulk racking system throughout Ullrich's Australian operations at a cost of close to $1 million. These matters were considered by the Court to be relevant for the purposes of Ullrich's sentencing, and were extracted in the Court's sentencing judgment (Inspector Dall v Ullrich Aluminium [2011] NSWIRComm 156 at [64] and [67]), 9.As a director of Ullrich and as its Chief Executive Officer and majority shareholder, I was instrumental in driving the changes to Ullrich's operations and occupational health and safety processes and procedures after the 3 September incident. ... 12.Although I was a director of Ullrich at the time of the 21 February 1996 incident, I was not otherwise involved in the Australian operations of Ullrich. The day to day running of Ullrich's Australian operations were managed by a management team that did not include me. I seldom attended board meetings and I delegated my vote at those meetings to a co-director who was also resident in New Zealand and a director of Ullrich. The Australian and New Zealand companies were run as separate entities until mid 2005 when I started to become more involved in the Australian business. 13.At the time my brother, Ernest Ullrich, oversaw the management of Ullrich's Australian interests, swore an affidavit for the purposes of the sentencing hearing arising from the 21 February 1996 incident. ... 19.Following the death of Troy Murrell I sent a letter to his parents and family on behalf of Ullrich and as an expression of my own sadness and remorse at the tragic loss of Troy's life. A copy of this letter is provided at the annexure marked "GU-B" to this affidavit. 20.To this day I carry a copy of this letter with me in my briefcase. It serves as a constant reminder to me of the tragedy that occurred on 3 September 2007 and of the need for me, in my role as a director of Ullrich, to be constantly vigilent to ensure the health, safety and welfare of all people who attend Ullrich's work sites. 21.I attended Troy Murrell's funeral, and willingly arranged for the costs to be met. 22.I wish to re-emphasise my sincere regret and remorse about the incident which lead to the loss of Troy Murrell's life and the placing of Mr Crawford at risk. I also wish to re-emphasise the regret and remorse I feel for the ongoing consequences that the incident has had for Troy's family.

31The defendant also tendered a bundle of three character references signed by: Sir William Gallagher dated 1 May 2012; Allan Morton dated 8 May 2012; and John W. Scragg signed 7 May 2012. The defendant relied on the references as proof of his good personal and industrial character. 32The reference by Sir William Gallagher, Chief Executive Officer of Gallagher Group Ltd, stated: ... I have known Gilbert Ullrich for over 30 years in both a professional and personal capacity. Mr Ullrich is well known in the New Zealand business community for his contribution to manufacturing, staff development and lobbying Government whilst he was a Board member of the Employers & Manufacturers Association (Northern). I was also a member of the EMA board and got to know Mr Ullrich well in this capacity. His integrity as an individual and as a businessman is without question - he is an honourable individual whose ethics and actions were valued and respected throughout the industry. Mr Ullrich always acted in the best interests of his staff and he was a generous sponsor of business and community initiatives. ... 33The reference by Allan Morton, Managing Director of ATB Morton Pty Ltd, stated: ... I have known Gilbert for approximately nine years. Initially through business and in later years as a friend. Gilbert is held in high regard in the business community not only in Australia but in New Zealand and the South Pacific region. He is a strong supporter of manufacturing in the region sitting on many committees to ensure manufacturing maintains a strong voice in both business and government circles. His integrity both in business and his private life is admired by his peers who speak highly of Gilbert. ... 34The reference by John W. Scragg, President and Chief Executive Officer of JWS Refrigeration & Air Conditioning Ltd, stated: ... I have known Gilbert for over 30 years in various business capacities and through our personal acquaintances. Gilbert is well respected in the business community in New Zealand and offshore. ... Gilbert has notably made a substantial contribution to the community in New Zealand and Australia where his company provides jobs, training, and education for many of the local workforce, especially the younger generation. Furthermore, I have had the pleasure of working with Gilbert through the New Zealand Pacific Business Council which supports export and import operations between New Zealand and Pacific Island Nations. I am a member of this council and Gilbert held the position of Chairman of the Council.

35The Court received a Victim Impact Statement signed by Mr Murrell's mother. There was no objection to the Statement. The Court acknowledges its receipt. 36I adopt the approach taken by the President in Inspector Dall v Ullrich Aluminium in relation to the Victim Impact Statement. Whilst I am unable to take into account the Statement in determining penalty (Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80] - [90]), I acknowledge the effect the loss of her son has had on Mrs Murrell. It is clear that the death of Mr Murrell has caused his mother and family an enormous amount of pain and suffering. The Court extends its deepest sympathy.

Submissions for the Prosecution 37Mr M P Cahill of counsel, who appeared on behalf of the prosecutor, made oral and written submissions which, taken together, are summarised as follows:

Objective Factors 1.The objective seriousness of an offence - including the obviousness or foreseeability of the risk, the gravity of the risk to safety and the availability and feasibility of measures to eliminate or control the risk - is the primary factor for consideration in the determination of sentence (Lawrenson Diecasting v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). 2.The risk in this case was that particularised in the amended applications for order, being the risk (to employees or non-employees) of being struck, trapped and/or crushed by falling cases of aluminium product. 3.The offences were objectively serious because the risk was not only obvious but known to the defendant prior to the incident, the defendant knew that the risk was ongoing following the previous incident, and there was the potential for a serious outcome which was manifested ultimately in the death of Mr Murrell. 4.There was a previous incident in 1996 at the corporation's Smithfield branch which involved, effectively, the same risk. It was an agreed fact that the defendant was aware of the previous incident (paragraph 69 of the agreed statement of facts). The defendant's knowledge of the previous incident is evidence that the risk was known to the defendant prior to the incident at the Mayfield warehouse. 5.As part of its ongoing response to the 1996 incident, the corporation had, in 2006, determined to undertake a review of racking at all its branches and had introduced in its South Australian warehouse a style of racking which eliminated the risk of collapse by incorporating internal vertical bollards between single stacks of aluminium cases. At the time of the 2007 incident, the new style of racking had not been introduced at the Mayfield warehouse. It was an agreed fact that the defendant was aware of those matters (paragraphs 70, 71 and 73 of the agreed statement of facts). The defendant's knowledge of those matters is evidence that the defendant knew there was an ongoing risk of collapse at the Mayfield warehouse prior to the 2007 incident. 6.The prosecutor acknowledged that the cost to the corporation of the fabrication and installation of the new style of bulk storage racks in use in its South Australian warehouse across all its branches (completed after the 2007 incident) was close to $1 million, but submitted that it was a simple engineering solution which could have been implemented to prevent the risk prior to the incident. 7.In relation to the Mayfield warehouse in particular, it was an agreed fact that oral warnings were given to employees not to enter into bulk storage racks, but that, nonetheless, slings attached to overhead cranes occasionally came to rest within the confines of bulk storage racks and workers would occasionally enter into the racks to retrieve them. Mayfield warehouse management were aware of those matters (paragraphs 54 - 56 of the agreed statement of facts) and the defendant, in his role as director, should have been aware of those matters. Knowledge of those matters would have made the defendant further aware of the risk of employees being struck and/or crushed by collapsing cases. 8.The absence of a system of work (including the provision of information, training and supervision) in relation to the retrieval of slings which had come to rest within the confines of the bulk storage racks in the context where it was known that slings did sometimes come to rest, is evidence of a lack of a proactive response to a known safety issue. 9.Whilst there was a common state of knowledge between the defendant and the corporation prior to the incident, the prosecution conceded that there were factors which mitigate the objective seriousness of the offences. 10.The prosecutor acknowledged, in this respect, that there were factors which distinguish the corporation from the defendant including the fact that the defendant, unlike the corporation, is a first offender and, whilst the defendant knew of the previous incident in 1996, he was not involved in the management of the Australian arm of the corporation at the time. 11.In terms of the relative culpability and criminality of the defendant as against the corporation, in circumstances where the two defendants were charged with, in effect, identical offences, the principles of parity apply. The Court should have regard to the judgment of Wright J in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [38] in determining whether it is possible to distinguish between the criminality of the corporation and the defendant. It was conceded that, given the corporation and the defendant are separate legal entities and the corporation employs a large number of people, has a diverse management structure and a number of directors, it is open to the Court to find the criminality of the defendant is "not identical" to that of the corporation.

Maximum Penalty 12.The defendant has no prior convictions. It follows, under s 12(d) of the Act, that the maximum penalty applicable for each offence is $55,000.

Need for Deterrence 13.There should be a component of both general and specific deterrence reflected in the sentence (Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 at [74]; (2000) 49 NSWLR 610 (at 644)). 14.In relation to specific deterrence, it was conceded that the steps taken by Ullrich Aluminium following the incident are indicative of a positive attitude to occupational health and safety. 15.However, specific deterrence should be a relevant factor in sentencing in light of the overlap in criminality between the previous incident and the present case.

Plea of Guilty 16.By s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act"), the defendant is entitled to have its pleas of guilty taken into account as a factor in mitigation of penalty. 17.The defendant could not be taken as having entered his pleas at the earliest possible opportunity. It is open to the Court to visit upon the defendant a reduction in the discount from 25 per cent. 18.The Court should take into account two sources of delay. The first was the reference of questions of law by Staff J to a Full Bench of this Court at the request of Ullrich Aluminium and the defendant in October 2010, which reference was revoked by consent in March 2011. Secondly, the defendant sought a further adjournment to await the outcome in the Court of Appeal in Chevalley v Industrial Court of New South Wales [2011] NSWCA 357 and the outcome of an application for special leave to the High Court. In the interim, Ullrich Aluminium entered pleas of guilty to amended applications for order alleging breaches of ss 8(1) and 8(2), and was duly convicted and sentenced by the President on 25 November 2011. Following the delivery of judgment in Chevalley, and the outcome of an application for special leave to the High Court, amended applications for order were filed in the present matters on 20 January 2012. The defendant entered pleas of guilty in relation to the amended applications for order when the matters were before the Court on 14 February 2012. 19.The defendant's pleas carry some utilitarian benefit, but any discount should be determined in light of the above chronology. The prosecutor noted that a 15 per cent discount was given to the corporation in Inspector Dall v Ullrich Aluminium and that he did not wish to be heard as to whether the same discount was appropriate in the current matter.

Remorse and Contrition 20.The Court may take remorse into account if the defendant has accepted responsibility for his actions and acknowledged or made reparation for any injury, loss or damage caused by his actions pursuant to s 21A(3)(i) of the CSP Act. 21.The prosecutor conceded that the defendant's pleas of guilty are evidence of remorse. 22.The prosecutor conceded that the defendant demonstrated remorse and contrition. There is no evidence which derogates from the view taken vis-à-vis remorse and contrition in relation to the corporation by the President in Inspector Dall v Ullrich Aluminium.

Steps Taken Since the Incident 23.Ullrich Aluminium has considerably reformed its occupational health and safety system since the incident under the stewardship of the defendant. This was acknowledged also by the President in Inspector Dall v Ullrich Aluminium.

Co-operation 24.The defendant co-operated in the investigation of the incident by WorkCover.

Character 25.The Court should take into account the defendant's has a good industrial record. 26.The prosecutor conceded that, in the context of character references provided by the defendant, Mr Ullrich's 50 years in the industry is a matter relevant to his overall culpability. The prosecutor made the following oral submission in this respect: ... I adopt your Honour's observations about the fact that as a matter of principle in relation to what might otherwise be described as regulatory matters issues of personal character have generally speaking been given less weight. Having made that observation, your Honour, I would not wish to be considered to suggest that it is of no relevance. Indeed, your Honour, the question of the personal standing of a defendant in person, as opposed to a corporation, is a matter, in my submission, which whilst it may be given less weight in relation to regulatory matters is nonetheless a matter which can be of significance, with respect, in consideration of the overall culpability and criminality of a defendant as it may be in matters which are more regularly considered to fall within the mainstream of criminal law. That's only just to concede, your Honour, that there is some relevance to Mr Ullrich's standing over a period of 50 years in industry. 27.It is open to the Court to take the defendant's character into account in sentencing, but evidence as to the defendant's personal character should be given less weight than evidence as to the defendant's industrial character.

Totality 28.The prosecutor acknowledges there is overlap in the criminality arising out of both charges, which arose out of the same factual substratum. The approach taken by the President in Inspector Dall v Ullrich Aluminium at [80] should be adopted.

Prior Convictions 29.The defendant, unlike the corporation, is a first offender. This can be taken into account by the Court in favour of the defendant in sentencing.

Victim Impact Statement 30.The victim impact statement received from Mrs Murrell, the mother of the deceased, in accordance with Pt 3 Div 2 of the CSP Act should be dealt with in accordance with the approach taken in Inspector Glass v Foamex Polystyrene [2004] NSWIRComm 100 at [43].

Moiety of Fine 31.The prosecutor sought a moiety of any fine(s) imposed for the WorkCover Authority of New South Wales.

Costs 32.The prosecutor sought costs as agreed or assessed.

Section 10 of the CSP Act 33.Having regard to the objective seriousness of the offences, particularly in circumstances involving a known risk, the application of s 10 of the CSP Act is not appropriate.

Submissions for the Defendant 38Mr Ginters made oral and written submissions which, taken together, are summarised as follows:

Objective Factors 1.The defendant accepted that the objective seriousness of an offence is a matter of primary significance in sentencing, and subjective matters are subsidiary. 2.The defendant conceded that the offences are objectively serious having regard to the penalties previously imposed on the corporation in Inspector Dall v Ullrich Aluminium. 3.Notwithstanding, given the contraventions with which the defendant was charged are, by virtue of s 26(1) of the Act, the same contraventions of the corporation, the defendant's relative culpability can be no higher than that of the corporation. 4.In the circumstances, the defendant's culpability should be considered to be relatively different from and less than that of the corporation. 5.This is because the defendant, unlike the corporation, is a first offender. 6.Further, whilst the defendant was a director of the corporation at the time of the previous incident in 1996, the Australian and New Zealand arms of the business were then run as separate entities and the defendant otherwise played no role in the day-to-day operation of the Australian arm of the corporation at that time. The defendant rarely attended board meetings, and delegated his vote at meetings to a co-director. It was the defendant's brother, Ernest Ullrich, who oversaw the management of the Australian arm of business whilst the defendant oversaw the management of the New Zealand arm. 7.Ernest Ullrich swore an affidavit for the sentencing hearing in relation to the previous incident. The defendant was not charged or otherwise involved in the proceedings in relation to previous incident.

Maximum Penalty 8.The maximum penalty for each offence is $55,000 pursuant to s 12(d) of the Act.

Deterrence 9.The defendant conceded that both general and specific deterrence may be taken into account by the Court in sentencing. 10.The defendant acknowledged that the Court does not take matters post dating the offence into account when considering whether to factor specific deterrence into penalty, however, the defendant pointed to the steps taken by the corporation after the incident under the guidance of the defendant as being indicative of a positive attitude to occupational health and safety.

Subjective Factors 11.There are significant subjective factors which should be seen as mitigating factors in sentencing.

Plea of Guilty 12.The defendant conceded that there was delay in the entering of a plea due to referral of questions by Staff J to the Full Bench, sought by the corporation and the defendant in October 2010 and ultimately discontinued in March 2011. A costs order was made against the corporation which ameliorated the costs of the prosecution associated with the referral proceedings. However, it was conceded, the delay caused by the referral and its ultimate dismissal would be a basis for the Court to reduce the discount for the utilitarian value of the defendant's plea from 25 per cent. 13.The delay in entering a plea following the dismissal of the referral proceedings is explained by latter events involving an application for special leave in the High Court in the matter of Chevalley. Given that the matter involved a challenge to the validity of s 26, the defendant was entitled to delay entering a plea until the application for special leave was determined. The defendant entered a plea immediately following the High Court's refusal of the application. The delay explained by the Chevalley proceedings should not lead to a reduction of the discount for the utilitarian value of the defendant's plea. 14.The President, in Inspector Dall v Ullrich Aluminium, formed the view that a 15 per cent discount was appropriate in relation to the utilitarian value of the corporation's plea. However, the circumstances of the defendant are distinguishable from those of the corporation given that the events involving the Chevalley proceedings were directly relevant to the defendant in his role as a director and explain why the defendant did not enter a plea until a later point in time.

Character 15.The defendant is highly regarded in the business community in Australia and New Zealand. His good personal and industrial character should be a factor taken into account by the Court in sentencing. 16.The defendant has been in the industry for over 50 years. 17.The defendant's commitment to workplace safety is a factor to be taken into account in his favour in sentencing (Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 at [109]).

Steps Taken Since the Incident 18.The steps taken by a defendant following an incident are relevant factors in mitigation (Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114 at [50]). 19.Ullrich Aluminium implemented many changes following the incident including: the installation of a new bulk racking system across it's branches at a cost of approximately $1,000,000; implementation of safe work method statements, particularly in relation to the loading and unloading of bulk racks; the reinstatement of tool box meetings; and the employment of a senior occupational health and safety supervisor. 20.The defendant was instrumental in driving the changes to Ullrich Aluminium's occupational health and safety procedures following the incident.

Remorse and Contrition 21.The defendant has demonstrated contrition and remorse. 22.The defendant wrote personally to Mr Murrell's family on behalf of Ullrich Aluminium to express his sadness and remorse. 23.The defendant arranged for the payment of the deceased's funeral expenses through Ullrich Aluminium. This is a relevant factor in mitigation of sentence (H P Woods (Holding)).

Co-operation 24.The defendant co-operated with the prosecutor throughout its investigation. This is a relevant factor in mitigation of sentence (H P Woods (Holding)).

Prior Convictions 25.The defendant is a first offender.

Section 10 of the CSP Act 26.The defendant may be taken to have made a formal application under s 10 of the CSP Act. The defendant did not wish to see a conviction recorded against his name. 27.Notwithstanding that the offences are objectively serious and the defendant had knowledge of the previous incident in 1996, the defendant is otherwise a good corporate citizen with no prior convictions. 28.The defendant acknowledged that there were no special or particular matters in relation to the matter vis-a-vis sentencing which would normally attract the operation of s 10 of the CSP Act.

Relevant Principles 39I discussed the relevant general principles for sentencing in this jurisdiction in some detail in WorkCover Authority (NSW) Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 (at [181] - [194]) ("Cross City Tunnel") and, more recently, in H P Woods (Holding). I adopt those principles for this judgment and will refer, as appropriate, to particular aspects of those judgments.

Consideration 40It is appropriate to commence these considerations by reference to some fundamental principles governing the sentencing process. These were discussed in Cross City Tunnel, at [184] - [191], as follows: 184 The purposes for which a Court may impose a sentence on an offender are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999. In this jurisdiction, the Court has adopted the approach applied by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 to the matters listed in s 3A: Morrison v Powercoal (2003) at [100] and Morrison v Powercoal (2005) at [13]. The principal and particular purposes of occupational health and safety legislation are the protection of workers from breaches of health and safety and compelling attention to occupational health and safety at the workplace: Tippett at [112] (applying McDonald's ) and Albright at [38] (there reflecting the objects of the Act). In R v Markarian [2003] NSWCCA 8 at [19], Hulme J (with whom Heydon JA and Carruthers AJ agreed), in the course of restating some basic principles of sentencing, adopted the following passage from Veen (at 261-2): "the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with her Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent...". 185 The sentencing of an offender involves a consideration of both objective and subjective factors: Morrison v Powercoal (2005) at [13]. The Court will keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 to 699; Lawrenson at 475; Fletcher Construction (1999) at 78 and Morrison v Powercoal (2005) at [13] (applying Lawrenson ). Thus, in sentencing, the factual basis for the Court's decision will include what the offender actually did and the history and other personal circumstances of the offender: R v Olbrich (1999) 199 CLR 270 at [1] (as to the proof of fact, see Olbrich at [25]). As to what the offender did, it must be borne in mind that the offender can only be sentenced "for the offence for which the offender has been convicted" ( Camilleri's Stock Feeds at 699 and also Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [29] (' Ridge '); Powercoal v Morrison (2005) at [76]; and Profab at [34], but the Court is bound to take into consideration the circumstances surrounding the offence for which the defendant has been convicted "so long as the circumstances are not inconsistent with the plea or verdict" ( Camilleri's Stock Feeds at 699 applying R v De Simoni (1981) 147 CLR 383 at 396). It should be noted that a plea of guilty only carries with it an admission of the essential legal ingredients of the offence admitted by the plea: R v O'Neill (1974) 2 NSWLR 582 at 588. Any facts (or disputes of fact) beyond that (and particularly those advanced by the Crown that are said to aggravate the offence) must either be agreed or proved in accordance with relevant principles: see O'Neill at 588 - 589 and Olbrich at [25 - 28]. 186 However, the primary factor to consider in sentencing under occupational health and safety legislation is the objective seriousness of an offence: Lawrenson at 475, Fletcher Construction (1999) at 78, Morrison v Powercoal (2005) at [13], Albright at [28], Capral at [53], Profab at [30], Manpac at [70] to [71], Menzies at [60], McDonald's at 428 and 430, and Walco at [22] to [23]. Thus, it is always important, in seeking to determine the sentence appropriate for a breach of occupational health and safety legislation, to consider the gravity of the offence viewed objectively, as "without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place": Dodd (1991) 57 A Crim R 349 at 354, as applied in Lawrenson at 476 and Fletcher Construction (1999) at 74 (see also R v Gordon (1994) 71 A Crim R 459 at 468, R v Allpass (1993) 72 A Crim R 561 at 563 and McDonald's at 432). (Indeed, the objective seriousness of the offence should be considered "first of all": Gordon at 468.) 187 Adopting the approach in Veen (at 472), each offence has its own objective gravity meriting at most a sentence proportionate to that gravity with the maximum sentence fixed by the legislation defining the limits of sentence for the most grave category (see Dodd at 354). This approach will ensure that allowance for subjective factors does not produce a sentence which fails to adequately take into account the objective gravity of the offence: Dodd at 354; Lawrenson at 476 and Fletcher at 79 and that there is a reasonable proportionality between a sentence and the circumstances of the offence ( Dodd at 354). Thus, this Court has consistently stated that subjective matters such as a plea of guilty, previous good individual citizenship, cooperation with the investigation and subsequent measures to improve safety, "rank in importance 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" (per Walco at [23]; see also Morrison v Powercoal (2005) at [13], Fletcher Construction (1999) at 78, Lawrenson at 475, Waugh at 97 and McDonald's at 429). 188 In Morrison v Powercoal (2005), the Full Bench approved (at [14]) the dicta of Hungerford J in Fisher v Samaras (at [388]) where his Honour held that the Court had a duty 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 in so far as a defendant is concerned not to impose such a penalty as would be oppressively high " (emphasis added) (a confirmation of that approach - without specific referral to Fisher v Samaras was given by the Full Bench in Warman at [339]). 189 Wright J, in Walco (at [23]), considered that this dicta should not be considered as qualifying the approach to balancing subjective and objective factors as expressed in Waugh . His Honour was referring to the subsidiary role of subjective factors discussed above. However, in my view, no contrary view was expressed in Fisher v Samaras . Hungerford J's observations were, in fact, derived from an earlier decision of Cullen J ( Workcover Authority of New South Wales (Inspector Glen David Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, 13 March 1996) in which Cullen J (at [116]) had expressed the view that the Court has a duty to ensure breaches of occupational health and safety legislation are punished with penalties of such magnitude "that companies will address occupational health and safety issues before such accidents occur". In substance, Hungerford J was, as he noted, correctly in my view, applying the oft quoted passage from the judgment of the Court of Criminal Appeal (delivered by Street CJ) in R v Rushby (1977) 1 NSWLR 594 at 598, as follows: If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and the probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 190 The objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Morrison v Powercoal (2003) at [13]; Lawrenson at 474; Independent Cargo at 4 and Hannah v Wonar at 9. As earlier noted, this will involve an assessment of what the defendant did (the objective circumstances of the offence) which, in the case of occupational health and safety legislation, will involve an assessment of the detriment to safety occasioned by the defendant ( McDonald's at [438]) and the nature and quality of the defendant's acts, as assessed in that respect. 191 As was observed by the Full Bench in Morrison v Powercoal (2005) at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23). The decision of the Full Bench in Fletcher Construction (1999) (at 79) (and Morrison v Powercoal (2005)) demonstrates that, nonetheless, there are a number of factors which, in the jurisprudence of the Court, may tend to establish the existence of an objectively serious offence. A few may be nominated for present purposes, as follows: (i) Foreseeability In McDonald's at 450 ( following Kembla Coal and Coke at [27]), the Court held that the degree of foreseeability of a risk to safety was a significant factor to be taken into account when assessing the level of culpability of the defendant (see also Benbow v Planada at [9]). Hence, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a relevant factor in the assessment of the gravity of the offence. By the Full Bench judgment in Capral (at [82]), it was held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. The gravity of the offence will increase where the risk to safety is known and left unabated with remedial action being available. In reliance on Hannah v Wonar (at [9]), Lawrenson (at [476]) and Coleman at [88], the Full Bench in Powercoal v Morrison at [90] acknowledged the proposition that it will be a serious offence where there is "an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible" (see also Menzies at [87]. In Hannah at [8]), the Full Bench referred to a "known and perceived danger, unchecked, and left in place". The Full Bench in Morrison v Powercoal (2005) referred to a risk being "glaringly obvious" (see also Wild Geese at [27]). Similarly, an offence has been found to have a high level of seriousness where the risk to safety was actually foreseen and not eliminated or minimised by available remedial measures ( Coleman at [89] to [91] and McDonald's at 452, Workcover Authority of NSW (Insp Lyons v Warman International Ltd (2001) 105 IR 236 and Benbow v Planada at [10]). It should be emphasised, however, as did the Full Bench in Capral (at [82]), the absence of foreseeability does not necessarily render the offence as being nominal or 'not serious'. The defendant is required to be proactive in seeking out and managing risks to safety ( Rexma at [52], Corinthian Industries at [10], Coleman at [86] and Workcover Authority of New South Wales v Fletcher Construction Australia Ltd (2002) 123 IR 121 at [43] and [44]). Thus, the defendant will not benefit from a lack of knowledge or foresight deriving from a failure to put in place a proper system for risk assessment, adequate work methods for a location or proper training (see Patton v Fletcher 123 IR 121 at [41] and [42], Benbow v Planada at [21] and Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [15] and [16]). (ii) Death or Serious Injury in Relation to an Offence A related consideration is the relationship between the seriousness of injuries suffered or which may have been suffered and the gravity of the offence. The principle was stated in Capral at [94], thus: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequence might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.... The judgment refers to a long line of authority consistent with that approach, including Tyler at 5, Hannah v Wonar at 9 Wong v Melinda Group Pty Ltd (1996) 82 IR 118 at 131, Lawrenson at 476, Walco at 22 and McDonald's at 428. To these may be added Fletcher Construction (1999) at 79. This passage has been consistently applied: Maddaford at [17]; Menzies at [86]; Narayan at [40] and Cahill at [35]. The authority was applied, in terms, in Morrison v Powercoal (2003) at [32] and Morrison v Powercoal (2005) at [93]. These principles are consistent with s 21A(2)(g), and in the case of a death arising from an industrial accident, s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (see Morrison v Powercoal (2005) at [94]). (iii) Simple Remedial Measures Available A further factor in assessing the gravity of an offence is whether there was available at the time of an incident simple and straightforward remedial measures to avoid or minimise the relevant risk to safety. When taken in combination with the foreseeability of the risk to safety then, such a factor may significantly increase the gravity of the offence. Thus, in Morrison v Powercoal (2003), the Full Bench observed that in assessing the gravity of an offence, the focus must be on the risk, and viewing it objectively, the seriousness of the act or omission that gives rise to the risk (see at [32]). The Full Bench observed (at [33]): ...it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straight forward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender... (the Full Bench thereafter continued this discussion in relation to mitigating factors: see Morrison v Powercoal (2005) at [93]; also see Menzies at [87]. In Gleeson, the Full Bench referred to a particular class of remedial measure, namely, "simple remedial measures well known in the industry in which the respondent was engaged" (at [29])). 41These principles have been followed in subsequent Full Bench judgments of the Court: WorkCover Authority (NSW) (Inspector Ching) v Bros Bins Systems Pty Ltd [2009] NSWIRComm 155; (2009) 189 IR 343 at [11] and [97]; Inspector James v Paul [2011] NSWIRComm 82 at [56-[57] and Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153; (2009) 188 IR 79 at [55] (see also the judgments of Boland J, President in Morrison v Centennial Coal Company Ltd [2010] NSWIRComm 4 at [25] and [26], and Staff J in Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141 at [105] and Inspector Regan v Pybar Mining Services Pty Ltd [2011] NSWIRComm 123 at [161]). 42In addition to the foregoing, I would add one further reference. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 (at 21), the Court found: A plea of guilty merely establishes the essential ingredients of the for sentencing purposes. However the Court needs to know more than those essential ingredients for sentencing purposes so as to address issues of aggravation and mitigation or, more appropriately, to establish the objective seriousness of the offence. It is necessary, in order to properly assess the objective seriousness of an offence (particularly where there is a wide scope for penalty in the imposition of a fine), to identify the whole context of the offence actually committed by the defendant: see R v Olbrich (1998) 45 NSWLR 638 at 542 and 544.

Objective Features 43It is necessary to turn firstly to the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of employees (as charged) in this matter. In Cross City Tunnel it was observed, in that respect, at [195]: The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100]. 44In Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, a majority of the High Court discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion is equally applicable to s 8 of the Act) as follows (at [11]): What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace. 45The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]). 46When restrained by the particulars of the charges, the relevant risk in the present matter was the risk (to employees and non-employees) of being struck, trapped or crushed by falling cases of aluminium product. 47This matter concerns a failure to ensure that the bulk storage racks used by employees at the Mayfield warehouse were safe and without risk to health. 48The measures which would have obviated the risk, as described in the particulars, were as follows: 1.the provision of bulk storage racks which incorporated vertical bollards or other means of support between each stack of cases; 2.the undertaking of a site specific risk assessment in relation to the design of the bulk storage racks and the risk associated with the stacking of aluminium cases; 3.the provision of a safe system of work, a written work method statement or safe operating procedure at the Mayfield warehouse in relation to the stacking, rigging, lifting and movement of aluminium cases into, out of and within the bulk storage racks and in relation to the retrieval of slings; 4.the undertaking of an adequate risk assessment in relation to the storage of aluminium product at the Mayfield warehouse; 5.the provision of adequate information and training to employees with respect to the safe use and operation of the overhead crane. 49There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered (or which may have been suffered) and the availability of simple remediable measures (see Cross City Tunnel at [191 (i) - (iii)] (set out above)). 50The criminality involved in an offence is to be measured not only by the seriousness of what occurred, but by reference to the reasons for its occurrence (Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993); (1993)113 LGERA 357 at (366). See also WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383 at [228]). An offence will be serious when it involves a risk to safety which was reasonably foreseeable (see, for example, McDonalds at [450]; Capral at [82]; and Kembla Coal at [27]). Where the risk to safety was not only foreseeable but known and left unabated with remedial action being available, the seriousness of the offence will increase (see, for example, Inspector Gregory Maddaford v Graham Gerald Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [89] - [91]; WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236; Morrison v Powercoal; Morrison v Powercoal (No 3); and McDonalds at [452]). 51I accept the prosecutor's submission that the risk to safety in the present case was both obvious and known. The defendant was aware that unrestrained stacks of aluminium cases had the potential to collapse and cause serious injury or death. This was evidenced by the fact that the defendant had knowledge of the previous incident in 1996 at the corporation's Smithfield branch, in which a worker was crushed and killed when a stack of aluminium cases collapsed. 52Further, the defendant was aware that remedial action was available to abate the risk, but such action had not been taken at the Mayfield warehouse prior to the incident. This was evidenced by the fact that the defendant was aware that, in June 2006, Dale Hutton, the corporation's Health and Safety Coordinator, had informed the WorkCover Authority of the corporation's intention to undertake a review of racking across its branches. It was further evidenced by the fact that the defendant was aware that an alternative racking system, which obviated the risk of collapse by incorporating vertical bollards between individual stacks of aluminium cases, had been introduced at the corporation's South Australian warehouse but had not been introduced at the corporation's Mayfield warehouse prior to the incident. 53Further, it should be noted that, at the time of the incident, the corporation did not have in place any formal, documented Job Safety Analysis or Safe Work Method Statement in relation to the bulk storage and handling of aluminium cases at the Mayfield warehouse. The corporation relied upon informal and undocumented "on the job" training in this respect. Whilst employees were issued with oral warnings not to walk between stacks of aluminium cases, it was an agreed fact that, from time to time, workers would, in fact, walk within bulk storage racks in order to retrieve slings which had become caught. 54A related consideration is the availability of remedial measures that were straightforward or simple. The defendant, as noted, was aware of the availability of a style of racking which would have eliminated the risk. Counsel for the prosecutor acknowledged that the cost to the corporation of fabricating and installing this style of racking across all its branches after the incident was close to $1 million, but submitted, correctly in my view, that it was, nonetheless, a "straight forward engineering solution". 55A final consideration, in this respect, is the relationship between the seriousness of the injuries suffered, or which may have been suffered, and the gravity of the offence (Capral at [94]). The occurrence of the death of Mr Murrell manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk. 56 It is appropriate to consider two futher matters going to the question of objective seriousness. The first is the maximum penalty for the offences (see Cross City Tunnel at [192 (i)]). The maximum penalty for each offence, the defendant being a first offender, was $55,000. 57The second consideration is deterrence (see Cross City Tunnel at [192 (iii)]). General deterrence is applicable in relation to these offences. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the manufacturing sector, and other like enterprises engaged in the bulk storage and movement of goods, of the appropriateness of implementing a system of storage which obviates the risk of serious injury from the collapse of products. 58Whilst counsel for the prosecutor akcnowledged that steps taken since the incident were indicative of a positive attitude to occupational health and safety, it was submitted that specific deterrence should be a relevant factor in sentencing given the overlap in criminality between the previous incident in 1996 and the present case. It was conceded by the defendant that, despite the positive steps taken since the incident, specific deterrence may be taken into account by the Court in sentencing. In accordance with the principles stated in Cross City Tunnel (at [193]), specific deterrence will also be factored into the penalty imposed on the defendant. 59There are, however, factors which both mitigate the objective seriousness of the offence and serve to distinguish the defendant from the corporation in terms of culpability. Whilst the defendant was a director of the corporation at the time of the 1996 incident at Smithfield, he otherwise played no role in the day-to-day operation of the Australian arm of the corporation at that time. (The defendant deposed in his affidavit that the Australian and New Zealand arms of the corporation were run as separate entities until mid 2005, at which time the defendant started to become more involved in the Australian business).The defendant rarely attended board meetings and delegated his vote at meetings to a co-director. Whilst the defendant oversaw the management of the New Zealand arm of the business, it was the defendant's brother, Ernest Ullrich, who oversaw the management of the Australian arm. Further, it was Ernest Ullrich who swore an affidavit for the purposes of the sentencing hearing arising out of the 1996 incident. The defendant was not charged or otherwise involved in the proceedings in relation to the previous incident. 60Further, it should be noted that, notwithstanding the somewhat informal approach of the corporation to training and the provision of warnings to workers (mentioned earlier), it is clear that Mr Murrell was an experienced employee who was well aware of the the danger associated with walking into the bulk storage racks and between stacks of aluminium cases. This was evidenced by the fact that Mr Murrell trained and supervised new workers at the Mayfield warehouse in relation to stock handling practices and the use of the overhead crane, and was a member of the corporation's safety committee. Mr Murrell had also instructed other workers at the Mayfield warehouse prior to the incident that it was not safe to enter into bulk storage racks and walk between stacks of cases and that they were not to do so. (Mr Murrell himself was encouraged by Mr Crawford, at the point of the incident, not to walk into the bulk storage rack). 61On balance, and taking into account the mitigating factors in this matter, the circumstances of the incident, particularly insofar as it involved a risk which was both obvious and known to the defendant, must result in the conclusion that the offence was serious.

Subjective Features 62I now turn to the subjective features of the matter. 63The steps taken by the defendant following the incident are a relevant factor in mitigation: Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210 at [24] and JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 at [107]. 64The prosecutor conceded that the corporation, under the stewardship of the defendant, considerably reformed its occupational health and safety system since the incident - a view which was, it was acknowledged, also taken by the President in Inspector Dall v Ullrich Aluminium. In that judgment the President, at [67], found that the corporation had worked "diligently to improve its overall safety performance" and had introduced a number of safety initiatives including the installation of a new bulk racking system, the implementation of safe work method statements and the employment of a senior occupational health and safety supervisor. 65The defendant also referred to the judgment of the President in Inspector Dall v Ullrich Aluminium where his Honour, at [64], expressed the view that the corporation had "undertaken commendable steps to ensure there is no recurrence of the contraventions that brought it before this Court." 66I adopt the approach taken by the President as to the steps taken following the incident in relation to the corporation. The defendant has demonstrated a strong commitment to workplace safety and that is also a factor to be taken into account in its his favour: Morrison v Powercoal (No. 3) at [109]. 67The assistance provided to the family of an injured worker is another relevant factor in mitigation: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [17] and Morrison v Powercoal (No. 3) at [112] and [114]. The defendant provided some assistance and support to Mr Murrell's family, evidenced by his having arranged payment, through the corporation, of Mr Murrell's funeral expenses, for which he should be entitled to some benefit. 68Demonstrations of remorse and contrition by defendants is a further factor which may be taken into account in mitigation of penalty: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) - (108); Morrison v Powercoal (No. 3) at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [39]; McDonalds at [454] and Rexma at [53]. 69The prosecutor conceded that the defendant's plea of guilty was evidence of his remorse, and submitted that there was no evidence in relation to the defendant which derogated from the view taken by the President in Inspector Dall v Ullrich Aluminium vis-a-vis remorse and contrition in relation to the corporation. In that case, at [74], the President accepted that the corporation had demonstrated remorse as evidenced by its conduct following the incident (including its pleas of guilty), the express statement of contrition and remorse in the affidavit of Mr Ullrich (on behalf of the corporation) and the letter sent by him to the deceased's family. 70The defendant submitted that his pleas of guilty, the statement of remorse in his affidavit and the letter he wrote to the deceased's family were evidence of his remorse and contrition over the incident. The defendant was not opposed to the Court adopting, in these proceedings, the findings of the President in relation to the corporation in this respect. 71Based on the foregoing discussion, I adopt the approach taken by the President in Inspector Dall v Ullrich Aluminium and find that the defendant demonstrated remorse and contrition over the incident. 72A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. I accept that the defendant co-operated with WorkCover in its investigation and should, accordingly, be entitled to a discount in that respect. 73The next consideration is the discount which should be afforded the defendant for the entry of a plea of guilty. 74The prosecutor submitted that the defendant could not be taken as having entered his plea at the earliest possible opportunity. The original applications for order were filed in July 2010; amended applications for order were filed in January 2012. The defendant entered his pleas in February 2012. 75It was submitted there should be taken into account the effect of two sources of delay. The first was the reference of questions of law by Staff J to a Full Bench of this Court at the request of the corporation and the defendant in September 2010. The questions raised on the reference related to the application of s 107 of the Act as to the time within which proceedings could be commenced following an inquest. The corporation and defendant ultimately sought to have the proceedings which arose from the reference withdrawn and, as a result, in March 2011, the proceedings were dismissed by the Full Bench in chambers. The prosecutor submitted that the delay caused by the reference and its ultimate dismissal, and the expenditure of resources associated with those proceedings, may be taken into account as a factor reducing the discount. 76The second source of delay was an adjournment sought by the defendant to await the outcome in the Court of Appeal in Chevalley and of an application for special leave to the High Court. In this respect, the prosecutor acknowledged that the Court may not be satisfied that the further delay associated with the Chevalley proceedings involved a significant expenditure of resources which should lead to a further reduction. 77The defendant acknowledged that the s 107 reference proceedings visited delay in the present proceedings. It was submitted that a costs order made against the corporation and defendant by the Full Bench at the dismissal of the reference proceedings had ameliorated the costs consequences of those proceedings for the prosecutor, but it was conceded that, notwithstanding, the reference and its ultimate dismissal may be a basis for the Court to reduce the discount for the utilitarian value of his pleas from 25 per cent. 78It was submitted that the Chevalley proceedings, however, involving, as they did, a challenge to the validity of s 26 of the Act, entitled the defendant to delay entering a plea until the application for special leave was determined by the High Court. Furthermore, the defendant entered a plea at the first opportunity following the High Court's refusal of the application. 79The determination of where, within the range of 10 - 25 per cent, a discount should fall in a particular case is a matter for the discretion of the sentencing judge, based on a consideration of the utilitarian value of a plea to the efficiency and effectiveness of the criminal justice system : R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], [115] and [153]. In Thomson, Spigelman CJ (as he then was) held, at [154], that there are two circumstances which will generally affect the appropriate level of discount in a particular case: the primary consideration is the time at which a plea is entered; the other consideration is the extent of the utilitarian benefit, for example, in the avoidance of a lengthy trial. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act). 80The prosecutor and the defendant each referred to the judgment of the President in Inspector Dall v Ullrich Aluminium wherein his Honour applied a 15 per cent discount to penalty for the utilitarian value of the corporation's pleas. His Honour determined to reduce the discount in that matter for the corporation's involvement in the s 107 reference proceedings. I do not consider that there is any reason to demur from the approach taken by the President in Inspector Dall v Ullrich Aluminium vis-a-vis a reduction in the discount for the delay caused by the s 107 proceedings. 81I do not consider that the later delay associated with the Chevalley proceedings should lead to a further reduction in the discount. The Chevalley proceedings raised what were novel questions of law (see Morrison v Chevalley (No 2) [2010] NSWIRComm 167). (See, also, Cross City Tunnel). There will be no further reduction for any delay associated with the Chevalley proceedings. 82The defendant shall receive a discount of 15 per cent for his plea of guilty. 83The prosecutor conceded that the defendant's good industrial character, evidenced by the character references provided and by the fact that he was a first offender with over 50 years' experience in the industry, should be a matter taken into account by the Court in sentencing. Evidence of the defendant's good personal character, it was submitted, had significance insofar as it related to the personal standing of the defendant being a defendant in person as opposed to a corporation, but should be given less weight by the Court in sentencing than evidence of the defendant's industrial character. I accept the prosecutor's submission in this respect. 84The defendant is a first offender and I accept he has a good industrial character. This should be taken into account as a significant subjective factor: Corinthian Industries at [17]; Morrison v Powercoal (No. 3) at [107] and Tippett at [107]. 85It is clear from the foregoing discussion that there are strong subjective features in relation to the defendant.

Application under s 10 of the CSP Act 86The application of s 10 of the CSP Act was an issue raised (however faintly) by counsel for the defendant in proceedings. Having regard to the provisions of s 10 of the CSP Act, the nature of the offences and the previous approaches of this Court to the application of that provision to proceedings arising under occupational health and safety legislation, I do not consider there are proper bases to grant the application. Whilst there were significant subjective matters, these offences are of such gravity as to make application of that provision inappropriate. I have also taken into account, in that regard, that no particular or unusual elements could be identified warranting the grant of the application.

87Having regard to the charges in this matter, the particulars of the offences, the agreed statement of facts, the evidence tendered in the proceedings, and the aforementioned consideration of the features of the matter relevant to sentencing, I accept the pleas of guilty by the defendant and enter verdicts accordingly.

Parity 88The principle of parity has a distinctly different operation to the principle of totality, although both principles ultimately have as their purpose the avoidance of a justifiable sense that an injustice has occurred. Justice Kirby in Postiglione v The Queen (1997) 189 CLR 295 (at 341) described the distinction in the context of the overall process of sentencing as follows: The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. (See also McHugh J at 306 and 313). 89The principle of parity was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione (at 301-302) as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in their being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. 90The prosecutor also referred the Court to the judgment of Wright J in Walco, wherein his Honour held (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 s 50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 50(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. 91It was conceded by the prosecutor that the culpability of the defendant could be no higher than that of the corporation. 92I have formed the view, based on the features distinguishing the defendant from the corporation, discussed earlier, that the culpability of the defendant is less than that of the corporation. It may be noted that, in any event, the different sentences will be applicable to the defendant as opposed to the corporation, having regard to the fact that the corporation had a prior offence (and further noting the statutory maximum applying to personal defendants).

93I turn now to consider the principle of totality. The principle was considered by the High Court in Postiglione, wherein it was held by McHugh J at (307 - 308): The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi: "There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect." The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. (See also the judgment of Kirby J at 341). 94The principle was later discussed and applied by the High Court in Pearce v The Queen (1998) 72 ALJR 1416. It was stated by the majority in Pearce (at [40]): [40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 95More recently, the principle was addressed by the Full Bench of this Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 where the Full Bench held (at [34] and [35]: 34 In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 (a case decided before Pearce), a Full Bench of this Court treated the fact that different offences have strong connecting features as supporting the application of the totality principle. In that case, the Full Bench considered the appropriate penalties for a defendant convicted of five offences under the Occupational Health and Safety Act (under both sections 15(1) and 16(1)), and one offence under s 27(1) of the Factories Shops and Industries Act 1962. Those offences arose out of four accidents and one inspection at the defendant's premises. The Full Bench stated (at 339) that: There were in our view clear features connecting a number of these events to each other. The first prosecution concerned a sheet metal rolling machine, which would appear to stand alone. The second and third prosecutions both related to the use and fencing of a fast loop moulding machine. The fourth prosecution related to a table mounted circular saw of some age which was sought to be replaced after the relevant accident by a new saw which itself, although freely available on the market, had two identified safety weaknesses which led to the fifth and sixth prosecutions. This inter-relationship seems to us to satisfy with considerable ease the proposition involved in the principle of totality that there be some similarity in the offences. 35 Subject to one consideration, that judgment reflects an appropriate application of the principle of totality, reflecting the need to avoid excessive punishment and to avoid "double punishment" for common elements of multiple offences. The last sentence of the passage cited, however, which seems to limit the circumstances in which the principle of totality is to be applied, appears to state the principle too narrowly and may well require reconsideration in subsequent Full Bench proceedings. See, for example, the judgment of the Court of Criminal Appeal in Close (1993) 65 A Crim R 55 at 59-60 where Hunt CJ at CL stated: Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved: Glenister [1980] 2 NSWLR 597 at 612; Holder and Johnston [1983] 3 NSWLR 245 at 260-261; (1983) 13 A Crim R 375 at 389-390. That principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences: L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168; Bakhos (1989) 39 A Crim R 174 at 176, 177-178; Harrison (1990) 48 A Crim R 197 at 198-199. It was clearly relevant in this case. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards in order to produce an acceptable total sentence. A similar approach was taken by Sheller JA at 56-57 and by Sully J at 70. However, this appeal does not require for its determination the resolution of that issue. 96The prosecutor acknowledged that there was considerable overlap in the criminality arising out of both charges. The charges also have a common underlying substratum of facts. It was submitted that the approach taken by the President in Inspector Dall v Ullrich Aluminium vis-a-vis the corporation should, in this respect, be adopted. In that judgment, the President was of the view that the principle required the Court, after having determined individual penalties calculated in relation to the respective offences for which they were imposed, to review the aggregate sentence and consider whether the aggregate is "just and appropriate" for all offences (at [78], citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (at 63). 97Justice Boland found (at [77]) that there was a significant overlap between the charges in relation to the corporation. The corporation failed to ensure both its employee, Mr Murrell (the s 8(1) charge), and its non-employee, Mr Crawford (the s 8(2) charge), were not exposed to what was the same risk. The risk manifested for Mr Murrell. His Honour held it would be neither appropriate to impose a penalty in respect of the corporation's s 8(1) offence and simply double it to take into account the s 8(2) offence, nor to impose a penalty for the s 8(1) offence and regard that as a "just and appropriate measure of the total criminality involved" (at [79], citing Postiglione at (307) - (308)). 98His Honour found, at [80], that the corporation should be fined $450,000 for the s 8(1) offence and $350,000 for the s 8(2) offence (being 55 per cent and 42 per cent of the relevant maximum penalties respectively). Having considered the principle of totality, Boland J concluded that an overall penalty of $600,000 appropriately reflected the total criminality involved for both offences; the individual penalties were reduced, as a result, to $350,000 for the s 8(1) offence and $250,000 for the s 8(2) offence (being 42 per cent and 30 per cent of the relevant maximum penalties respectively). 99It is not stated in the judgment the basis upon which his Honour determined to impose a higher penalty for the s 8(1) offence as opposed to the s 8(2) offence. However, no contrary approach was agitated in this matter, and, hence, having regard to the differing circumstances applying to the ss 8(1) and 8(2) offences, I shall adopt the approach of the President in terms of apportioning the overall criminality between the offences in this case. 100Before turning to the application of the principle it is necessary to return briefly to a consideration of the objective seriousness of the offences and the subjective factors. The penalties which I shall give in this matter shall make due allowance for the strong subjective factors in favour of the defendant (referred to earlier in this judgment). However, as previously discussed, the Court must ensure that those considerations do not produce a sentence which fails to sufficiently take into account the objective seriousness of the offences. It is unnecessary to repeat the earlier assessment of the objective factors; it is suffice to say that, even taking into account other mitigating factors, the offences in this case were objectively serious. 101I am satisfied that the charges in Matter No IRC 691 of 2010 and Matter No IRC 692 of 2010 contain common elements as discussed in Keenan. Accordingly, the principle of totality should be applied in respect of both offences. 102Having regard to these considerations, I find that the following penalties are appropriate: (i) in relation to the s 8(1) offence (Matter No IRC 692 of 2010), the appropriate penalty is $21,000; (ii) in relation to the s 8(2) offence (Matter No IRC 691 of 2010), the appropriate penalty is $16,000. 103Having regard to the principle of totality for Matter Numbers IRC 691 and 692 of 2010, the appropriate total fine, having regard to the overall criminality, should be $27,000. The fines to be imposed in relation to each offence are: (i) in relation to the s 8(1) offence (Matter No IRC 692 of 2010), a fine of $15,800, (ii) in relation to the s 8(2) offence (Matter No IRC 691 of 2010), a fine of $11,200. 104There was no issue between the parties as to moiety or costs and orders will be made accordingly.

Matter No IRC 691 of 2010 1.In this matter the Court orders: (i)The defendant is convicted of the offence as charged. (ii)The defendant is fined in an amount of $11,200 with a moiety to the prosecutor. Matter No IRC 692 of 2010 2.In this matter the Court orders: (i)The defendant is convicted of the offence as charged. (ii)The defendant is fined in an amount of $15,800 with a moiety to the prosecutor. 3.The Court further orders that the defendant shall pay the costs of the prosecutor as agreed or, in default, as assessed for these proceedings.

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