Inspector Glass v Foamex Polystyrene Pty Ltd

Inspector Glass v Foamex Polystyrene Pty Ltd - [2004] NSWIRComm 100 - NSWIRComm 2004 case summary — Zoe

[11]

4 The defendant pleaded guilty to the charge and an agreed statement of facts was tendered to the Court. The following facts may be derived from the agreed statement: (a) In the course of or as part of his employment, Mr Crabb was required or permitted by the defendant to operate and/or maintain a foam plastic moulding machine ("the machine"). The tasks performed by the Mr Crabb included the off-loading and subsequent stacking, strapping and movement of product from the machine and cleaning of the machine. (b) The machine was still in a developmental stage. The machine was leased from Treffner Engineering by Foamex Pty Ltd who then provided it to the defendant. (c) The machine operated in the following manner: (i) Pre-expanded foam balls were fed from silos outside the factory into the hopper above the machine. (ii) When the machine was activated, the platen, which is a flat steel plate, closed to a pre-compression position and foam balls were blown into the die via the hopper chute. (iii) The platen moved forward towards the die in order to compress the foam balls and steam was supplied to the die to make the finished product (or pod). (iv) After a pre-determined time and pressure the steam was shut off and air was introduced into the die to aid cooling. Once set, a vacuum was applied to the platen via slots in the steel plate and the platen removed. (v) The finished product was drawn from the mould with the platen and dropped down to the floor when the vacuum was removed. (d) At the commencement of the day, the person operating the machine was required to grease the platen seal and locks and clean out the slots in the platen. To clean out the slots the operator usually climbed into the space between the platen and the die block and used a strip of plastic to remove any build up from the slots. It was also necessary, from time to time, for the operator to climb into the space between the platen and the die block during the production run to scrape out a damaged or malformed pod stuck in the mould. A pod is the product that the machine was making. The operator was expected to enter the die area through an interlocked gate. However, access to the die block area was possible from several other areas. (e) At the front of the machine was a control panel which had an extract or eject button. When someone pushed the extract button, an electric signal was sent to the Programmable Logic Controller (PLC), which had an eject cycle. The eject cycle was a back up system which was used to remove the pods if they were stuck in the die block. If someone pressed the extract button and the cam locks (or platen locks) were in the open position, the eject cycle would operate from the starting sensor position. If that occurred, the motor drove the platen into the die block, a vacuum was applied and the motor reversed moving the platen away from the die block thereby releasing the pod from the machine. (f) The machine had an isolation switch on the side of one of the control panels. If that switch was turned off, the machine could not operate. There was no means by which an operator of the machine could turn the isolation switch off and ensure that it was kept off whilst he or she was cleaning out the slots. (g) On the morning of Friday 14 December 2001, Mr Crabb attended the machine to start greasing the seal and cleaning the slots in the platen. There was no air pressure on the machine at the time because the main air compressor, located at the front of the factory about 115 metres from the machine, had not been switched on and was not operating. Mr Crabb attempted to run the platen back to the fully opened position so that he could climb into the machine to clean it. There was insufficient room for a person to climb into the machine in order to clean it unless the platen was back to the fully opened position of the starting sensor. (h) The platen did not open and after several attempts to resolve the matter Mr Crabb sought help. He sought assistance from Syedabdul Qavi and then Andrew Brazakovski. Mr Brazakovski returned with Mr Crabb to the machine to sort out the problem. Mr Brazakovski opened the platen to the maximum position (which is indicated by way of a handwritten line on the machine) by accessing the control box and manually pressing the contactor controlling the platen drive motor. Mr Brazakovski did not turn off the main isolating switch. (i) Mr Brazakovski then left the machine to turn on the air compressor but did not complete that task as Keith Short had in the meantime turned on the air compressor. (j) In the intervening period Mr Crabb entered the die area of the machine to commence cleaning the slots. At some stage before he had entered the die area, the eject cycle had been activated by someone pressing the extract or eject button. (k) After the air pressure was turned on, the air pressure rose in the air solenoids controlling the platen locks. This caused the platen locks to lift to the open position. Once the locks were opened, a signal was sent to the PLC to commence the eject cycle because the PLC had stored in its memory the order to commence the eject cycle in those circumstances. When the eject cycle started up, the platen motor started up, driving the platen forwards and fatally crushing Mr Crabb between the die block and the platen. (l) There was a deficiency with the guarding of the machine in that the dangerous part of the die and platen could readily be accessed from a number of sides of the machine including from underneath an interlocked side gate installed on the right hand side of the machine. This deficiency had been drawn to the attention of the defendant on 22 March 2000 when the factory supervisor, Mr Vanden Hoogen, submitted to the General Manager of the defendant, Mr Hillar Treffner, a memorandum outlining his concerns. That memorandum was in the following terms: I know we been busing (sic) with changing the boiler etc, etc. But I have to warn you, that the safety guards etc have to be fitted to the Pod Machine, as required by WorkCover.

[13]

Please do something soon. (m) Subsequent to the memorandum, the defendant installed the abovementioned interlocked gate on the right hand side of the machine. The front and left hand side of the machine remained unguarded. (n) The effective operation of the limited guarding fitted to the machine by the defendant relied on operators such as Mr Crabb entering the die area only via the interlocked right hand side gate. Access by such means would have disabled the machine by interrupting its power supply. (o) The defendant did not provide or maintain a safe isolation and tagging policy or procedures for persons entering the danger area of the machine. (p) The defendant did not supervise or train or did not adequately supervise or train its employees including Mr Crabb in the safe use and handling of isolation procedures on the machine or on electrical switch panels and equipment. (q) The operation of the machine was electrically controlled through a PLC which had an eject cycle which was not wired in a fail-safe manner. The PLC retained in its memory the order to start the eject cycle even though the machines appeared to be switched off. (r) The defendant failed to provide sufficient training and supervision for the safe cleaning of the machine. (s) The defendant failed to provide a safe system for the cleaning of the machine. (t) The accident could have been avoided by: (i) The defendant guarding or interlocking all sides of the machine to ensure that the dangerous part of the die and platen could not be accessed unless the machine was isolated; (ii) The defendant providing and maintaining safe isolation and tagging procedures for persons cleaning the machine; (iii) The defendant providing sufficient training and supervision to its employees in the safe use and handling of isolation procedures on the machine or on electrical switch panels and equipment; (iv) The defendant ensuring that the PLC had an eject cycle which was wired in a fail-safe manner; (v) The defendant providing a risk assessment to determine a safe system of cleaning the machine; (vi) The defendant providing a safe system for the cleaning the machine. (vii) The defendant providing sufficient training and supervision for the safe cleaning of the machine.

[56]

37 Part 3, division 2 of the Crimes (Sentencing Procedure) Act deals with victim impact statements. Sections 28 to 30A of that Act are in the following terms: 28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, the Supreme Court, Industrial Relations Commission or District Court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, the Supreme Court, Industrial Relations Commission or District Court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) Despite subsections (1), (2) and (3), the Supreme Court, Industrial Relations Commission or District Court: (a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. (5) The Supreme Court, Industrial Relations Commission or District Court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. (6) In relation to a victim impact statement given by a family victim, this section applies to a Local Court in the same way as it applies to the Supreme Court, Industrial Relations Commission and the District Court. 29 Victim impact statements discretionary (1) The giving of a victim impact statement is not mandatory. (2) A victim impact statement may not be received or considered by a court if the victim or any of the victims to whom the statement relates objects to the statement being given to the court. (3) The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim. 30 Formal requirements for victim impact statements (1) A victim impact statement must be in writing and must comply with such other requirements as are prescribed by the regulations. (2) If a primary victim is incapable of providing information for or objecting to a victim impact statement about the personal harm suffered by the victim, a member of the primary victim's immediate family or other representative of the victim may, subject to the regulations, act on behalf of the victim for that purpose. (3) A court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division. 30A Reading out victim impact statements in court (1) If a victim impact statement has been duly received by a court, a victim to whom it relates, or a member of the immediate family, or other representative, of the victim, is entitled to read out the whole or any part of the statement to the court. (2) The statement may be read out at such time as the court determines after it has convicted, but before it sentences, the offender.

[57]

38 In R v Mansour [1999] NSWCCA 180 at [7] it was held by Spigelman CJ (with whom Studdert and Adams JJ agreed) that it was entirely appropriate for trial judges to acknowledge the impact of crime on victims and their families in a public way, giving public recognition of the grief imposed. At [3] to [7] of the judgment the Chief Justice said: 3 The first ground of appeal was an allegation that the sentencing judge took into account irrelevant material. This is based on the following comments by his Honour during the course of his remarks on sentence. His Honour said: "I think it is fair to say that the result of this collision and the loss of that young lady's life has caused what can only be described as immeasurable grief to her family. The material in the form of Victim impact statements supports that situation". 4 This passage in his Honour's reasons occurs immediately after his summary of the facts and immediately before his reference to the case in Jurisic (1998) 45 NSWLR 209 and to the sentencing guidelines therein contained, to which I will further refer. It was submitted that his Honour's reference to "immeasurable grief" indicated that his Honour had taken into account an irrelevant consideration in arriving at the sentence. This submission should be rejected. 5 In Bollen (1998) 99 A Crim R 510, Hunt CJ at CL referred to his earlier decision in Previtera (1997) 94 ACrimR 76 to the effect that the Victim Impact Statement is not relevant to sentence. When applying the principle to the facts before him in the case of Bollen , however, his Honour said: "When referring to the Victim Impact Statements, the judge said that the consequence of the crime committed by the Appellant was that the community had lost one of its number and the Groves family had lost a loving member - one who was a husband, father, son and brother. I see nothing wrong with that statement. It does no more than recognise the value which the community places upon human life. However, the judge then said that he had 'borne in mind' the seven statements filed, the material which they contained about the deceased and the reaction of the respective authors of those statements to his death. He went on to describe the statements as useful because of the involvement which they permitted of the family 'in a criminal justice process' and also because 'they helped remind the sentencing judges that the loss of any individual has real effect upon others'. He referred to the counselling and medical attention they had received, and continued: 'Naturally, the seven statements were written at a time when the authors anticipated the verdict would be murder. They will, of course, understand that the prisoner must be dealt with consistently with the jury's verdict, and also that I must proceed dispassionately no matter how strongly they feel.' I am satisfied that, by bearing this material in mind and by having regard to the particular effects of the death of the deceased upon the members of his family, the judge had taken irrelevant material into account and thus fallen into error." 6 In the present case, there is no language in the judgment which would suggest that Viney DCJ had taken into account the contents of the victim statements in the manner referred to above. Rather, the reference to "immeasurable grief" is equivalent to the "recognition of impact", referred to by Hunt CJ at CL in the first three sentences of the above extract from Bollen . 7 It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims. Unlike Bollen , there is nothing in the judgment to suggest that his Honour gave this consideration weight in determining the sentence eventually imposed. To infer that he did so would be to draw an inference from what is submitted to be a manifestly excessive sentence, but if it is a manifestly excessive sentence then it falls for that reason, rather than by reason of some inference about his Honour's reasoning process that can be derived from its manifestly excessive character.

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