Inspector Gill v Collex Pty Ltd

Industrial Relations Commission (NSW)|2006-04-21|Before: Backman J

CITATION: Inspector Gill v Collex Pty Ltd [2006] NSWIRComm 375

Prosecutor: Inspector Steve Gill PARTIES: Defendant: Collex Pty Ltd

CATCHWORDS: Occupational health and safety - plea of guilty to one offence under s 8(2) of the Occupational Health and Safety Act 2000 - incident at premises leased by defendant when a front end loader with its bucket raised collided with a stationary truck - very serious injuries sustained by truck driver - defendant had a safety procedure specifically tailored to its operations at the premises - system was nevertheless deficient - conduct of an employee of the defendant and conduct of the driver of the front end loader considered as contributing factors to the circumstances of the offence - whether the contributing conduct mitigated the otherwise objective seriousness of the offence - whether risk to safety reasonably foreseeable - general and specific deterrence applied - whether readily available remedial measures capable of implementation prior to the offence - whether injuries of truck driver a reflection of the gravity of the breach - relevance of prior convictions including interstate convictions - early plea of guilty - utilitarian considerations - contrition - cooperation - good corporate citizenship - post-accident safety measures - penalty - orders - costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health Safety and Welfare Act 1986 (SA)

Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304 Inspector Jones v Dewcape Pty Ltd and Another [2006] NSWIRComm 361 Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (No. 2) [2003] NSWIRComm 45 Postiglione v The Queen (1989) 189 CLR 295 CASES CITED: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 WorkCover Authority (Inspector Patton) v Fletcher Construction Aust. Ltd (2002) 123 IR 121 WorkCover Authority of New South Wales (Inspector Chaston) v Vaughn Constructions [2005] NSWIRComm 254 WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439 WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409

Prosecutor: Mr D. O'Neill of counsel Solicitors: Carroll & O'Dea LEGAL REPRESENTATIVES: Defendant: Mr M. Cahill of counsel Solicitors: Sparke Helmore

INSPECTOR STEVE GILL v COLLEX PTY LTD (ACN 051 316 584)

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

1 Collex Pty Ltd has pleaded guilty to an offence under s 8(2) of the Occupational Health and Safety Act 2000. The offence occurred at premises leased by the defendant in Banksmeadow on 30 September 2002. The particulars of the offence are set out in an amended application for order which are extracted below:

The Defendant, being an employer, on the said date at the said site, contrary to section 8(2) of the 2000 Act, did fail to ensure that people other than employees of the Defendant, in particular, Edward MacKenzie, were not exposed to risks to their health or safety arising from the conduct of the Defendant employer's undertaking while they were at the Defendant employer's place of work. In particular, the Defendant failed to provide and maintain an adequate system of work in relation to the unloading of trucks at the site in that the system in place failed to ensure that people like Edward MacKenzie could only enter the area where the front end loader was operating at the direction of the front end loader operator. 2 The defendant has operated a building waste facility at the premises since about July 2001. Its operations included the receipt of construction and demolition waste for recycling. On about 15 August 2001, the defendant entered into an agreement with Concrete Recyclers (Group) Pty Ltd (CRG) to sort construction and demolition waste delivered to the site. Materials recovered from the recycling process were loaded by CRG personnel into bins provided by the defendant. The arrangement was set out in a letter dated 13 August 2001. 3 On 30 September 2002, Arthur Edward MacKenzie, an employee of Active Management (Australia) Pty Ltd, drove his truck to the defendant's premises to deliver a bin of bricks. This activity was apparently undertaken in the capacity of a customer of CRG. Mr MacKenzie packed his truck at the gate house where he was handed a tip docket by Scott Reisenleiter, an employee of the defendant. Mr MacKenzie, in accordance with the prevailing procedure, then drove his truck down a corridor which was constructed of concrete blocks until he reached a "Stop" sign. The prevailing practice was set out in a sign which was prominently displayed at the gate house. The sign contained the following directive:

Attention all vehicles Yard policy states that YOU MUST STOP and wait until the loader operator directs you into the unloading/loading area. Failure to comply (with) this request will (ensure) that you will not be permitted to use this facility. 4 Mr MacKenzie waited in his truck for a period of time. During that time other trucks parked behind him. Mr Reisenleiter then asked Mr MacKenzie to move his truck into the unloading area and park it at a location about 20 metres past the "Stop" sign. This was so that other trucks behind his truck could get past and access other areas of the site. Mr MacKenzie moved his truck to a position almost parallel to a number of truck tyres which formed a boundary to the area of operations of a front end loader. When Mr Reisenleiter asked Mr MacKenzie to move his truck he did not, as he was required to do, inform the loader operator, Frank Smeekens, that Mr MacKenzie had moved his truck past the "Stop" sign into the unloading area. Mr MacKenzie, once parked in the area, remained seated in the truck. Mr Smeekens, who was not aware that Mr MacKenzie's truck was parked in the area, drove his front end loader towards the truck. The front end loader's bucket was in an upright position which completely obscured Mr Smeeken's view. The leading edge of the bucket collided at windscreen level with the cabin of the truck. Mr MacKenzie suffered severe injuries. He was transported to hospital where he underwent multiple operations. He suffers abdominal wall deformity, permanent weakness in his right hip and right lower limb, and permanent restriction in sexual function. He is unable to perform any heavy physical tasks and requires a cane to assist him in walking. He has been unable to return to duties as a result of his injuries. Consideration 5 The relevant risk to safety in the circumstances of the offence was the risk of collision with heavy vehicles. The delivery of construction and demolition waste at the premises was effected by vehicles, namely trucks, and the operations at the premises necessitated the use of heavy machinery such as the front end loader. The risk of collision was also one about which the defendant was aware. As the agreed statement of facts records, prior to the offence, the defendant and CRG had engaged in discussions concerning the possibility of employing a yardman who would be stationed at the "Stop" sign to direct traffic into the loading/unloading area in conjunction with the loader operator. The proposal did not eventuate, apparently because the defendant thought that the presence of a yardman would, of itself, create a range of safety issues. It is noteworthy, however, that following the accident, a procedure was implemented, although only as a temporary measure, whereby a yardman was posted at the "Stop" sign to control the flow of traffic into the area. 6 It is reasonably clear from the evidence tendered during the sentence proceedings that the activity in which the defendant was engaged was a busy one with a constant flow of heavy vehicular traffic in and out of the loading and unloading area. One indication of this is that immediately prior to the accident, when Mr MacKenzie had parked his truck at the gate house he was requested by Mr Reisenleiter to move the truck into the area so that other trucks, which had, in the meantime, parked behind him, could get past. 7 Given the type of vehicle and machinery involved in the operation, the risk of collision carried with it a likelihood of very serious injuries. Undoubtedly, the defendant was aware of all these matters and had taken comprehensive and impressive measures to counteract the risk. The agreed statement of facts conveniently sets out in summary form, the procedure that the defendant had implemented prior to the offence at the premises in relation to the unloading of construction and demolition waste:

Trucks with loads were to enter the site with their load for delivery;

Trucks with loads were to stop at a gate house operated by Reisenleiter;

At the gate was a sign prominently positioned which stated that, following receipt of a ticket from Reisenleiter, the Drivers were to travel to the stop sign and await instructions from the Loader Operator before entering the unloading area;

Reisenleiter was to estimate the size of the load to be delivered and issue the driver of the truck a tip docket;

The drivers were then instructed by Reisenleiter to drive their trucks along a corridor constructed of concrete blocks towards the tipping area;

Empty trucks were also to proceed directly along the corridor towards the "Stop" sign;

At the end of the corridor of concrete blocks was a "Stop" sign. The truck drivers were told to stop at the "Stop" sign and wait until the loader operator directed the drivers into the unloading/loading area;

After the trucks tipped their waste or were loaded with rubble, they would then exit via a gate at the eastern end of the site. 8 This procedure functioned to alert the loader operator to the presence of vehicles in the loading and unloading area and so avoid the risk of collision between those vehicles and the front end loader. To that effect, the loader operator determined which vehicles entered the area and then directed those vehicles to an appropriate area to unload the waste. All customers of the waste facility were provided with a letter which outlined the above procedure.

9 Notwithstanding this procedure and its implementation, the defendant, prior to the accident, had not completed a formal risk assessment of traffic management for the site. Nor was there a documented position description for Mr Reisenleiter's role or any formal training records for Mr Reisenleiter. It will have been observed from the brief account given in this judgment of events leading up to the accident that Mr Reisenleiter, acting contrary to the prevailing procedure, instructed drivers to move forward past the "Stop" sign into the unloading/loading area. Apparently, this occurred sometimes when a truck arrived at a time when the front end loader was not in operation or, simply if Mr Reisenleiter formed the view that there were too many trucks waiting in line. Mr Reisenleiter had a two-way radio which enabled him to communicate with the loader operator. On most occasions, as the agreed statement of facts records, Mr Reisenleiter alerted the loader operator that he had instructed a truck driver to drive the truck into the tipping area. The defendant's site manager at the premises, Steven Lawrence, was not aware that Mr Reisenleiter had departed from the procedure and was instructing drivers to move forward past the "Stop" sign into the tipping area. This was despite the fact that Mr Lawrence spent some five or six hours per day, four days a week, at the premises during which time he spoke to both Mr Reisenleiter and the front end loader operator Mr Smeekens about operations at the premises. 10 In addition to Mr Reisenleiter's unauthorised departure from the procedure, one further event contributed to the accident on the day of the offence. This event involved Mr Smeekens' operation of the front end loader with the bucket raised. The raised bucket was an extremely unsafe measure since it obscured entirely Mr Smeekens' view in the direction of travel which, as it happened, was in the direction of Mr MacKenzie's truck. 11 The action of both Mr Reisenleiter and Mr Smeekens and their respective contributions to the accident itself are relied upon by the defendant as mitigating the objective seriousness of the offence. A number of observations may be made about this particular submission. First, I do not understand the submission to be advanced as a basis for contending that the risk to safety was not reasonably foreseeable. The defendant's counsel, Mr Cahill, in written submissions, has conceded that the risk to safety was, "readily foreseeable and in fact foreseen" by the defendant. Rather, the defendant advances the submission on the basis that the defendant had addressed the risk of collision by implementing its traffic management procedures, which, if they had been followed would have, "... greatly reduced - if not obviated - (the risk)". Secondly, the actions of an employee or a worker at a premises at which an employer has responsibility for worker-safety, where those actions involve, for example, a departure from an otherwise safe system of work, do not exculpate the employer in relation to its obligations under the Act, to ensure safety. These obligations cannot be transferred or delegated by persons with the responsibility for safety at a worksite: Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) (No. 2) [2003] NSWIRComm 45 at [42]; WorkCover Authority (Inspector Patton) v Fletcher Construction Aust. Ltd (2002) 123 IR 121 at [40]-[42]; Inspector Jones v Dewcape Pty Ltd and Another [2006] NSWIRComm 361. Thirdly, notwithstanding the employer's statutory obligations to ensure the safety of employees at work and other persons at the worksite, the actions of an employee or worker which undermine or depart from a system or procedure in place to ensure safety may nevertheless mitigate the culpability of the employer for the purposes of sentencing. This latter principle has been affirmed in the Full Bench decision of Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 [15]:

Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257:

Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 12 An important corollary of this latter point is that an employer's instructions as to safety must be both sufficient and complied with by employees and other workers: see Riley v Australian Grader Hire Pty Ltd at [16]. Here, although both parties appeared to characterise the offence as a failure to maintain a system, the amended application for order is in different terms, namely, a failure to provide and maintain an adequate system of work, by which characterisation I take to mean a failure to have in place at the premises an adequate system of work. It is clear from the evidence tendered during the proceedings that the defendant had in place a system at the premises designed to ensure the safety of personnel involved in the loading and unloading operations of construction and demolition waste. In my opinion, however, this system was deficient. No formal risk assessment had been undertaken at the site in relation to traffic management and Mr Reisenleiter had not received any formal training. Moreover, as earlier observed, the defendant was aware of a risk of collision between heavy vehicles as evidenced by its investigation into the possibility of employing a yardman at the "Stop" sign to direct the traffic into the unloading area, prior to the offence. 13 All of these matters serve to highlight the seriousness of the offence, although I intend to take into account as mitigating the seriousness of the offence the actions of Mr Reisenleiter and Mr Smeekens, as well as the fact that the defendant had in place a comprehensive system, although deficient, designed to ensure the safety of workers at the premises involved in the loading and unloading of waste. The actions of Mr Reisenleiter and Mr Smeekens must, however, be assessed by reference to the deficiencies in the defendant's system. This is to be contrasted with circumstances in which a defendant has in place a system of safety which is adequate but a departure from the system by, for example, an employee, nevertheless operates to expose other persons to a risk of safety. In my opinion, it is to this latter set of circumstances that the remarks of the Full Bench in Riley v Australian Grader Hire Pty Ltd were probably directed. For these reasons, the actions of both Mr Reisenleiter and Mr Smeekens operate to mitigate the objective seriousness of the offence to a degree, but not to the extent contended for by the defendant. The material on sentence (which includes the submissions of the parties) indicates that in the case of Mr Smeekens, this was the first occasion in which he had driven the front end loader with the bucket raised. As regards Mr Reisenleiter, although he had apparently issued instructions to truck drivers to drive beyond the "Stop" sign without first advising the loader operator on prior occasions, this practice had not come to the attention of Mr Lawrence even though Mr Lawrence, at least four days a week, had spoken to both persons at some length about operations at the premises. He also undertook regular inspections. Nevertheless, it seems that Mr Reisenleiter's departure from the prevailing practice was not, on the evidence tendered during these proceedings, brought to his attention. 14 In addition, the defendant had in place, prior to the offence, a general safety management system, the details of which have been set out in an affidavit affirmed by Christine Hodgekiss, the defendant's NSW Compliance Manager. According to Ms Hodgekiss, the defendant developed its Safety Management System in response to audit assessments by WorkCover in 2000 and 2001, after which the defendant was granted accreditation as a "self-issuer" in May 2002. The system contains a risk management division comprised of a risk manager, occupational health and safety officers, an environmental officer and other co-ordinators who assist the divisional managers and site managers with safety issues, as well as the undertaking of site audits and reviews. The defendant also developed a computerised "company-wide" intranet system (known as the "Hippo Station") which provides for various safety procedures, operating standards, JSAs and a computerised compliance monitoring system. The existence of these systems prior to the offence which appears both comprehensive and accessible, also serves to mitigate the otherwise objective seriousness of the offence. 15 On the other hand a number of factors serve to increase the objective seriousness of the offence. 16 First, the risk to safety occasioned by the risk of collision of heavy vehicles was, at minimum, reasonably foreseeable, and probably foreseen. This latter point appears in any event to have been conceded by the defendant. The defendant was aware of the risk of collision, as earlier observed, but after giving consideration to the issue by entering into discussion with CRG about employing a yardman, the idea was abandoned. In any event, a formal risk assessment of traffic flow, had one been undertaken, should readily have identified the risk. 17 Secondly, the principle of general deterrence is of particular significance in the circumstances of the offence. This is so notwithstanding the defendant's submission that it should play a limited role. The submission is advanced on the basis that the defendant had in place, prior to the offence, a detailed safety system, including a system specifically tailored to the operation of loading and unloading at the premises. In support of the submission, reliance is placed on the first instance decision of Marks J in WorkCover Authority of New South Wales (Inspector Chaston) v Vaughn Constructions [2005] NSWIRComm 254 at [15]-[16] where his Honour observed generally that:

[D]efendants who generally make a substantial effort to comply with their obligations should be seen to be rewarded for that effort rather than unduly punished. 18 A reading of his Honour's sentencing remarks reveals, however, that his Honour's comment was directed to the principle of specific deterrence, rather than general deterrence. The defendant's submission in the present proceedings seems also directed more to the principle of specific deterrence. I intend to follow the line of authority in this jurisdiction as to the importance attributed to general deterrence in the sentencing process in relation to occupational health and safety offences. Recently, in WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], a Full Bench affirmed the Vice-President, Walton J's, observations on the principle in WorkCover Authority of New South Wales v Hitchcock (2005) 139 IR 439 at [28]:

[T]here is one other significant factor going to the question of the objective seriousness which will influence the assessment of penalty in this matter: general deterrence. The principle relating to general deterrence set out in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69]-[70], referred to recently with approval by the Full Bench in Maddaford v Coleman at [80], emphasise the more severe punishment which attends general deterrence, should it feature in sentencing:

The Court in WorkCover Authority v Schrader held at [69]-[70]:

The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72]-[74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 per Street CJ citing R v Radich [1954] NZLR 86 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]).

See also the Full Bench decisions in [WorkCover (NSW)] WorkCover Authority (NSW) v Burnshaw Constructions Pty Ltd (2002) 121 IR 119. 19 In the present circumstances, the defendant's operations at the premises involved the use of large vehicles and machinery in situations where, at times, traffic was heavy and congested, and where there was a recognisable risk of collision between those vehicles, or between vehicles and machinery. It is of fundamental importance in such circumstances to ensure that other businesses operating in a similar industry are made aware where the use of heavy vehicles and machinery is commonplace, and where a risk of collision exists, of the need to guarantee the safety of workers engaged in the industry. One way to send this important message is by the imposition of a penalty of sufficient severity to merit attention to such matters. 20 In my view, specific deterrence is also significant here. The defendant continues to operate in the industry on a large scale. It has been in operation in the area of construction and demolition waste in New South Wales since about mid-2001 without incident until the present offence on 30 September 2002. Nevertheless, the principle is clearly relevant and must be applied. First, it would be relatively rare that the principle would not be applied in relation to occupational health and safety offences. Secondly, so long as the defendant continues to operate in the industry, it will have an opportunity to commit further offences against the Act: WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 at [31]-[35]. 21 A further factor which exacerbates the seriousness of the offence is the simple remedial steps which in my view were capable of implementation prior to the offence. By way of illustration the interim measure imposed by the defendant following the offence in which the yardman was employed to control the flow of traffic at the "Stop" sign, is one such measure. Another measure which could have been implemented was the remote controlled boom gate installed after the offence. The boom gate is operated by remote control by the loader operator and controls who enters the yard and at what time. 22 The injuries suffered by Mr MacKenzie are also a reflection of the seriousness of the breach of the Act: WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd at [26]. 23 It was suggested by the prosecutor that the Court should consider the defendant's culpability by reference to the culpability of CRG. It was submitted that the Court had sufficient material before it to undertake an assessment. I do not agree. I was not for example directed to any decision in relation to CRG. I was simply informed that it had entered a plea of not guilty and the matter had proceeded by way of a defended hearing. The material contained in the agreed statement of facts is insufficient to enable me to properly consider the role of CRG in the circumstances giving rise to the offence committed by the defendant. No further material which may have shed some light on this issue was tendered during the sentence proceedings. 24 The defendant has a prior conviction in New South Wales under s 15(1) of the Occupational Health and Safety Act 1983. This means that it faces a maximum penalty of $825,000. In addition the defendant, the Court was informed, has convictions in Tasmania and in South Australia. The Court was not provided with any details of substance in relation to the Tasmanian conviction. The South Australian conviction was brought under the Occupational Health Safety and Welfare Act 1986 (SA) and involved a defective waste compactor owned by the defendant which enabled access to dangerous moving parts. An employee of the defendant was injured when his right arm became trapped in the compactor. The relevant failures of the employer were alleged to be a failure to maintain plant in a safe condition and a lack of instruction, training and supervision afforded to the injured worker. 25 The interstate convictions, together with the conviction in New South Wales are relevant in relation to a consideration as to whether this Court should withhold leniency to which the defendant may otherwise be entitled: see, for example in relation to the relevance of foreign convictions in the sentencing process: Postiglione v The Queen (1989) 189 CLR 295 at 303. 26 The defendant entered an early plea of guilty to the offence. This was not disputed by the prosecutor. Accordingly, in accordance with the relevant principles the defendant is entitled to a discount of the penalty reflecting the utilitarian value of the early plea: WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd at [20]. 27 An appropriate discount reflecting the early plea of guilty in my view is 25 per cent. 28 I also take into account in the defendant's favour the impressive procedures which it has developed and implemented following the commission of the offence. These are set out in the agreed statement of facts and extracted below:

On 3 October 2002, Laurence issued a memorandum to all drivers confirming the need to await instructions from the Loader Operator prior to entering the tipping area.

Following the incident a risk assessment was conducted by the Defendant and additional controls were implemented including posting a yardman at the "Stop" sign to control the flow of traffic into the yard. The posting of a yardman to control the flow of traffic into the yard was a temporary measure taken until a remote controlled boom gate was installed. The boom gate is operated by remote control which is used by the Loader Operator to control who can enter the yard and at what time.

Following the construction of the boom gate, a new procedure was adopted as follows:

(a) Customer (Truck Driver) arrives with building and concrete waste at CRG gate house/weighbridge.

(b) Weighbridge Operator informs driver of load volume and measures where necessary. Invoice is produced, driver signs and receives copy.

(c) Weighbridge Operator directs driver to boom gate. Driver then awaits instruction from excavator operator to proceed into tipping area.

(d) The Boom gate is operated by remote control handsets which are in the possession of either the loader or excavator operators. [This clause is repeated to all new customer(s) accessing the site].

(e) Only one vehicle is permitted to drive through the boom gate at a time.

(f) Once clearance is given to proceed through boom gate, the truck moves to relevant pile and tips.

(g) Trucks then move to wheel wash bay area and exit site via top gate.

In the case where power or control failure lead to the boom gate has resulted, the Weighbridge Operator is to erect and install a battery operated flashing signal, that alarms/warns all oncoming vehicle(s) leading to the tip zone. This is to be mounted at a height within the visual range of driver and at a point that is parallel with the existing boom gate. All customers/vehicles are to be informed of the system's failure by the Weighbridge Operator. This is to be exercised verbally. 29 The defendant has also updated its general safety programmes following the offence which I also take into account in its favour. 30 In addition, and as a discrete consideration from the utilitarian rationale which provides the foundation for a discount in the event of an early plea, the defendant's plea of guilty is also evidence of its contrition. It has also cooperated with WorkCover during the course of investigations. These matters I take into account in the defendant's favour on penalty. 31 According to the evidence, which I accept, the defendant plays a significant role in environmental protection, remediation and improvement of environmental performance. It is also committed to a broad range of social partnerships and community activities including "Clean Up Australia Day" and "Clean Up Antarctica". In addition to these matters, the prosecutor concedes that the defendant's record of prior convictions, having regard to the size, nature and extent of its operation, and its history, enable the inference to be drawn that its industrial record, "...is not a bad record". Taking all these matters together, in my view the defendant has shown good corporate citizenship which further entitles it to leniency in relation to penalty: Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304 at [38] - [40]. Penalty

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

33 In Matter No IRC 5102 of 2004 I make the following orders:

(1) The defendant, Collex Pty Ltd is convicted of the offence.

(2) The defendant, Collex Pty Ltd is fined $130,000 with a moiety thereof to the prosecutor.

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

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Occupational Health Safety and Welfare Act 1986(SA)

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Cases Cited (14)