30 At the time of the Egtberts incident, inadequate though they were, the defendant did take steps to investigate the matter and I should have regard to that fact in the defendant's favour. However, the failure to undertake an adequate risk assessment at the time of the Egtberts incident demonstrated a lax approach to safety on the defendant's part but more particularly, increased the seriousness of the offence relating to Ms Lowe's injuries.
31 The failure to undertake an adequate risk assessment in the circumstances of this case was a serious failure by the defendant and the penalty will need to reflect this.
32 I note the incident concerning Ms Smith that went unreported and that the defendant was unaware of it. That incident demonstrated a flaw in the defendant's reporting system, perhaps because of inadequate training and instruction, but that is not a particular of the charge.
33 It is settled law that a breach, such as occurred here, where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk. Undoubtedly, the injuries suffered by Ms Lowe were serious and manifest the seriousness of the risk both to her and to Ms Egtberts.
34 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence. Clearly, those steps were available (but not taken), as evidenced by the action taken by the defendant after the Lowe incident, as described in Mr Scholten's affidavit.
35 General and specific deterrence are matters to be taken into account in sentencing under the Act. One of the objects of punishment is to deter others tempted to commit the same crime (general deterrence) and to deter the offender from re-offending (specific deterrence). In respect of general deterrence it was submitted for the prosecutor that:
[T]here are two factors which are particularly relevant to general deterrence. The first is there is a public interest in those who use machinery which use pneumatic or air pressure understanding the dangers associated with any stored or unreleased air pressure. Dangers from electrical equipment are, one hopes, now well understood but there are general deterrence reasons why this court would be wishing to demonstrate the potentially serious risk that arises from stored or unreleased air pressure and the importance of complying with the Australian Standard to ensure that machinery operated by air pressure is constructed in a way that ensures that that air pressure is either dumped or neutralised before persons can come into contact with the piece of equipment.
The second issue… is the fundamental importance of employers acting when an incident occurs for the first time to ensure that the risk that gave risk to that incident is removed to prevent any further injury from arising from that same piece of machinery.
36 I agree with the prosecutor. The penalty will give appropriate weight to the need for general deterrence. In relation to specific deterrence the defendant continues to carry on business and to operate machinery including pneumatic powered machinery, at its Lisarow plant. It would also need to continue to conduct regular risk assessments of its machinery and to train staff as to safe methods of work and, in particular, safe methods of dealing with any jamming of lines or other risks that might arise from coming into close proximity with machinery. Accordingly, consistent with the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29 I intend to include an element for specific deterrence. However, I should add that given the steps taken by the defendant as described in Mr Scholten's affidavit to very significantly upgrade its focus on occupational health and safety, I do not regard the risk of the defendant re-offending as very high at all.
37 I note the prosecutor's submission that the earlier prosecution and conviction of the defendant involved a failure to adequately guard, failure to provide safe work procedure and failure to provide adequate information, instruction, training and supervision. These failures occurred on the same production line as that which is the subject of proceedings in this matter. If it had not been for the extensive makeover of occupational health and safety procedures and practices in the past two years I may have given the earlier offence more weight in the context of specific deterrence but I consider the changes made have neutralised the need to do so.
38 I am required to give, and have given, give careful attention to the maximum penalty applicable. In this case it is $825,000 for both offences by virtue of the defendant's prior conviction.
39 I turn to the subjective considerations. The defendant entered a plea of guilty. The plea was not have been entered at the earliest opportunity but it was entered within six weeks of the prosecution being commenced. I believe the utilitarian value of the plea to be high and I will discount the penalty by 22.5 per cent.