Objective Features
38This was, objectively, a very serious offence.
39Not only was there a failure to provide adequate measures to eliminate what was an obvious risk of entanglement posed by the presence of an unguarded, dangerous machine in this case, a defect in the machine's control system meant that, when the green start button became jammed with residue as an effect of the lubrication process and the machine was being operated in automatic mode, the machine had the capacity to begin operation spontaneously at any time (including whilst operators were reaching into it). The risk was exacerbated by a system of work which actively exposed workers to the risk by requiring them to reach into the machine whilst it was in operation in order to lubricate blank discs. Moreover, the risk was one to which a young, inexperienced and, ultimately, unsupervised worker was exposed.
40In all the circumstances, the risk of entanglement was highly foreseeable. There were simple remedial measures available prior to the incident which, had they been implemented, would have abated the risk. The likelihood of catastrophic injury occurring was high and became a reality when Mr Braeckmans became entangled in the machine and suffered a very serious injury. (That worker later died in hospital). There was also an absence of particular factors in mitigation of the objective seriousness of the offence in this case (although it must be observed that the defendant is entitled to mitigation of sentence because he does not have any record (CSP Act s 21A(3)(e)).
41It should also be noted that whilst the particulars of the charge in this matter were focussed upon the culpability of the corporation, AMS, the defendant was charged in his capacity as a director of the corporation who, by s 26(1) of the Act, is taken to be responsible and culpable for its acts and omissions. This Court has previously held that, in assessing the culpability of a defendant charged under the Act by virtue of s 26(1), it is not a question of balancing the relative contribution to the offence by the corporation on the one hand and the defendant director (or a person concerned in the management of the corporation) on the other, but, rather, the Court proceeds upon the basis that the purpose of s 26(1) is to make an individual who is responsible to an extent for the running of the corporation similarly responsible for its acts or omissions (Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [38]).
42In assessing the culpability of the defendant, weight will be placed upon the role played by the defendant in decision making in relation to employment and changes to practices, and in otherwise running the corporation (Walco Hoist (No 2) at [39]).
43It is relevant to note that, in this case, the defendant was the managing director of AMS. He was personally and directly involved on a day-to-day basis in the operations of the corporation. The defendant trained employees of the corporation in the operation of the machine (including the manner of lubricating blank discs), directed Mr Braeckmans to operate the machine on the day of the incident (and made arrangements, or a lack thereof, for his supervision), and was reported to directly by Mr Nguyen as to problems with the machine's green start button becoming stuck. Having regard to these facts it must be concluded that the defendant played a significant role in the running of the corporation and was responsible to a similar extent for its acts and ommissions as particularised in the charge.
44I shall elaborate.
45The objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting, Capral Aluminium Limited v WorkCover Authoity of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 700; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383 and Walco Hoist (No 2)). I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] - [45]:
It 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].
In 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.
The 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 charge, the relevant risk in the present matter was the risk to employees of being caught or entangled in the moving parts of the machine and sustaining consequential crushing, laceration, amputation, other similar or associated injuries or death.
47This matter concerns a failure to ensure that the machine used at the factory for the purpose of metal spinning, and the systems of work relating to the to use of the machine by employees (including in relation to lubrication of metal discs), 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 fitting of guarding and an interlock device to the machine;
2.the provision of a system of lubrication which permitted lubricant to be applied to the blank metal discs remotely or mechanically or in any way which did not require operators to hold the lubricant in their hands and which did not bring operators' hands into close proximity of the moving parts of the machine;
3.the provision of a control system preventing the machine from restarting in circumstances where the start button became stuck in a wholly or partially depressed position;
4.the provision of a system of work which ensured the start button was kept clean so that the button functioned correctly and did not stick - either by providing a protective guard to prevent the accumulation of residue around the button, changing the method of lubrication to prevent the transfer of residue from operators' gloves to the button, or by introducing a program of regular inspection, maintenance and cleaning of the button;
5.the provision of a written work method statement or safe operating procedure identifying the safety risks involved in the operation of the machine, that is: the risk of entanglement; the risk that residue would accumulate around the start button and cause it to stick; and, the risk that the machine had a capacity to restart when the button become stuck. Such documents could have obviated the risk by describing how the machine was to be operated, and identifying measures to be applied to identify and minimise the safety risks associated with the operation of the machine;
6.the provision of adequate training and instructions to employees in a maintenance, inspection and cleaning program to prevent the green start button from becoming contaminated with residue and jammed in a wholly or partially depressed position;
7.the provision of adequate supervision for Mr Braeckmans while he was operating the machine.
49There are a number of factors which increase the objective seriousness of the offence including the high degree of foreseeability of the risk, the occurrence of serious injury and the availability of simple remediable measures (see Cross City Tunnel at [191] (i) - (iii)).
50The presence of an unguarded, dangerous machine is itself a factor which demonstrates a high risk to safety (Inspector Jelley v Lanza Management Pty ltd and Guiliano Lanza [2008] NSWIRComm 125 at [39]). The Court has previously stated, in Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 at [41], that:
... It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at [53].
51The machine, as imported from the Netherlands in 1982, was not fitted with any form of guarding or interlocking device. Further, at all material times, the machine, whilst in the ownership of AMS, was not guarded or interlocked in accordance with the relevant Australian Standards (AS 4024.1601-2006: Safety of Machinery Part 1601: Design of controls, interlocks and guarding - Guards - General requirements for the design and construction of fixed and movable guards and AS 2024.1603-2006: Safety of Machinery part 1603: Design of controls, interlocks and guards - Prevention of unexpectes start-up), or any other appropriate mechanism to prevent operators accessing the dangerous parts of the machine when in operation or to ensure the machine could not restart whilst operators were reaching inside. The failure to guard in this manner was, on any objective consideration, a serious breach.
52In Morrison v Powercoal Pty Ltd & Anor. (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117, the Full Bench acknowledged the proposition that an offence will be serious "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" (at [90] citing Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at [9] and Lawrenson Diecasting (at 476)). (See also Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 (at 27); McDonalds at [450]; and Capral at [82]). This Court previously found, in Kembla Coal (at 27), that the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of a defendant. Further, the existence of a foreseeable risk to safety which is likely to result in serious injury is a factor relevant in assessing of the gravity of an offence (Kembla Coal (at 27); Morrison v Powercoal (No 3) at [88], Capral Aluminium at [81]-[82] and Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [87]).
53The risk of entanglement in this case was, as I have noted, a risk which was highly foreseeable. Not only was the machine unguarded, but the system of work implemented by AMS required workers to reach into the machine whilst it was in operation. This was evidenced by the fact that the system of lubricating blank metal disks required the machine's operators to hold a piece of soap against, or manually apply lubricating oil to, the blank metal discs once the machine had begun to spin but prior to the machine commencing to form the disc. Operators were also required to reach into the machine at the conclusion of each production cycle to remove the formed metal product. At no stage prior to the incident were employees of AMS, in particular Mr Braeckmans, Mr Nguyen and Mr Bui, provided with a safe work method statement, safe working procedure or written instructions in relation to the operation of the machine so as to obviate the risk.
54The defendant was aware, prior to the incident, that, as a result of the process of lubricating the blank metal discs, the green start button on the machine had the tendency to become jammed after a period of time due to a build up of residue transferred from operators' gloves. The defendant was further aware that, when the green start button became jammed and the machine was being operated in automatic mode, the machine had the capacity, due to a defect in its control system, to spontaneously restart itself at any time without operator intervention (including whilst operators were reaching into the machine at the conclusion of each production cycle to remove formed product). This was evidenced by the fact that the defendant had been informed by Mr Nguyen on at least three occasions prior to the incident on 4 May 2010 that the start button had, in fact, jammed. It was also an agreed fact that the machine had the capacity to spontaneously commence a fresh production cycle in such circumstances.
55However, although there was evidence before the Court of instances of 'near misses' involving Mr Nguyen (in which the machine had, in fact, restarted itself with his arm still inside), the defendant, on the evidence before the Court, had not been informed and was not aware of this fact prior to the incident. This is a factor which, to some extent, amerliorates the objective features of the offence already mentioned, which features may otherwise have lead to a conclusion that the case fell within the worst category of cases. (This issue will be further addressed below).
56The vulnerability of the victim of an offence due to their very young age is an aggravating factor in sentencing (CSP Act s 21A(2)(l)). Mr Braeckmans, in this case, was such a victim. At 15 years of age, Mr Braeckmans would be considered to be a very young man in the community, and he certainly was a young man for employment purposes. He was also inexperienced, having had no work or industrial experience of any kind prior to commencing work as a labourer, just three weeks prior to the incident, with AMS.
57This factor is also relevant to the assessment of the objective seriousness of the offence.
58Employers carry an additional burden of responsibility for ensuring the safety of young and inexperienced employees on their worksites (GRD Minproc at [14]). The presence of young and inexperienced persons in the workforce gives rise to an increased responsibility on the part of employers to ensure adequate training and supervision is provided, particularly as to matters concerning the occupational health and safety of those persons (Newstart 150 at [93]).
59In Inspector Maddaford v Coleman, the Full Bench said at [96]:
... we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 (at [230]):
... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.
As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]-[65].
60Further to the aggravating factors already mentioned, whilst Mr Braeckmans had been trained in the use of the machine by the defendant personally, he had operated the machine on only three occasions prior to the incident, on 30 April 2010, and 1 and 3 May 2010. On 4 May 2010, during the course of AMS relocating the factory premises, Mr Braeckmans was directed by the defendant to operate the machine, and was left alone in the factory to do so (save for the presence of Mrs Hadfield who was situated some 20 metres away from the machine with no direct line of sight to Mr Braeckmans). Whilst the defendant had told Mrs Hadfield that, if she could not hear the sound of the machine operating, she should check on Mr Braeckmans, this could not possibly be said to constitute proper and appropriate supervision of the young man. He was effectively, as I have noted, left working alone.
61At the time of the incident, Mr Braeckmans was simply obeying the instructions of the defendant in operating what was, as noted, a dangerous machine, in a dangerous manner as he had been trained to do. In doing so, Mr Braeckmans suffered a very serious injury and later died in hospital. These factors significantly increase the objective seriousness of the offence.
62A related consideration is the availability of simple remedial measures. Following the incident, the machine was relocated by AMS to a premises at Milperra, and was installed at those new premises with an electrically interlocked fence-style guard. The machine was then sold as part of the liquidation of AMS. In the hands of its current owners, the machine has had a modified electrically-interlocked guard installed. Other steps which have been taken following the incident include updating the control system to include a software interlock and other features to prevent the machine from restarting spontaneously. I accept the submission of the prosecutor that such actions represented simple remedial measures which were available prior to the offence and which would have abated the risk of entanglement.
63The relationship between the seriousness of the injuries suffered, or which may have been suffered, is relevant to the assessment of the gravity of the offence (Capral at [94]). The occurrence of the serious injury of Mr Braeckmans manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.
64On balance, taking into account the circumstances of the incident, particularly insofar as it involved a risk which was highly foreseeable and the additional aggravating factor of the age, inexperience and lack of supervision of Mr Braeckmans, must result in the conclusion that the offence was, as noted, very serious.
65There is a further issue which must be addressed at this juncture. That is, whether, given the seriousness of the objective factors of the offence just noted, the present case could be said to fall within the category of worst cases. This issue was raised, albeit tentatively, by counsel for the prosecutor.
66The proposition affirmed by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465 (at 478) (citing Ibbs v The Queen (1987) 163 CLR 447) that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed is of long standing (see for example, more recently, Butler v Regina [2012] NSWCCA 54, MH v REGINA [2011] NSWCCA 230, and McDonalds at [141]). The task of the Court, therefore, is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is afforded. Whether a case falls within the category of worst cases is to be determined on the facts of the case, and there ought to be a reasonable proportionality between a sentence and the circumstances of the offence viewed objectively (McDonalds at [141], Trevor Vernon Dodd (1991) 57 A Crim R 349 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698) citing Ibbs v The Queen (at 452)). The maximum penalty should not be imposed when a case is recognisably outside the worst category of cases, however, it does not follow that a lesser penalty must be imposed simply because it is possible to envisage a worse case (McDonalds at [141], Camilleri's Stock Feeds (at 698) citing Veen v The Queen [No 2] (at 478)).
67For a case to be in the worst category of cases, it must be possible to point to particular features which are of a very great heinousness, callousness, odium or wickedness and it must be possible to affirm an absence of facts mitigating the objective seriousnes of the offence (as distinct from subjective factors mitigating the penalty to be imposed) (Holohan v R [2012] NSWCCA 105, R v Helen Ryan; R v Coralie Coulter [2011] NSWSC 1249 at [15] - [16], Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 at [48] and R v Vusumuzi Twala (unreported, Court of Crimnal Appeal, 4 November 1994 (at 7)).
68As I have explained, the objective factors in this matter are quite serious. This is particularly so given the presence of aggravating factors and the absence of factors in mitigation of the objective seriousness of the offence. However, this was not a case which involved a deliberate disregard of safety procedures by the defendant in the expectation or clear realisation that harm would result (Hitchcock at [48]). Whilst, as noted, there was evidence in these proceedings of previous 'near misses' involving Mr Nguyen, there was no evidence to support a conclusion that the defendant had prior knowledge of that fact (which he then failed to act upon). The prosecutor did not press for a finding of that nature. Further, there was no evidence that the risk of entanglement had manifested in the injury of any employee prior to the incident involving Mr Braeckmans on 4 May 2010. The defendant was also a first offender. These factors must lead to a conclusion that, notwithstanding its seriousness, this case lacks the particular qualities which would propel it into the worst category of cases, thereby attracting the maximum penalty.
69It will be, therefore, necessary to have regard to the subjective features of this matter in assessing penalty.
70Before doing so, however, it is appropriate to consider one final objective factor relevant to the assessment of penalty, that 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 of the need to ensure that adequate safety precuations are adopted in relation to inherently dangerous machinery in the workplace, particularly where the machinery is operated by young workers, the safety of whom must be vigilantly ensured. The failure to properly guard machinery continues to be a significant cause of injury in the workplace and should be deterred by a significant penalty (WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340 at [65]). Persons engaging workers must understand that offences which occur in circumstances where there has been a failure to properly guard machinery will be regarded as serious. It must be reiterated to those engaging workers in the manufacturing industry and other like enterprises engaged in the use of dangerous machinery that a failure to properly guard such machinery (and provide appropriate interlocking devices) in the present day is unacceptable.
71Having regard to the circumstances of the offence, general deterrence will factor significantly in the penalty imposed on the defendant.
72Whilst counsel for the prosecutor acknowledged that the defendant no longer occupied a management or director position following the deregistration of AMS, it was submitted that specific deterrence should nonetheless factor into the Court's consideration of penalty given that the defendant continues to work in the metal spinning industry (albeit, as an employee rather than as a director or in a management capacity). In accordance with the principles stated in Cross City Tunnel (at [193]), (accepting that, in the circumstances, the likelihood of the defendant re-offending is low), there will be an element for specific deterrence in the penalty.