(2003) 130 IR 364
Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39
R v H (1983) 3 A Crim R 53
R v Thomson
R v Houlton [2000] NSWCCA 309
Source
Original judgment source is linked above.
Catchwords
(2005) 215 ALR 213(2005) 228 CLR 357
Morrison v Powercoal Pty Limited [2003] NSWIRComm 416(2003) 130 IR 364
Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39
R v H (1983) 3 A Crim R 53
R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383
Judgment (4 paragraphs)
[1]
Judgment
1This prosecution is brought by Inspector Hall of the WorkCover Authority of New South Wales against Morris Powerlec Pty Ltd (in liquidation) ("the defendant") under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an Application for Order.
2It is alleged the defendant, on 16 September 2009, at 128 Briens Road, Northmead in the State of New South Wales ("the premises"), contravened s 8(1) of the Act in that it failed to:
b y its acts or omissions as particularised below, ensure the health, safety and welfare at work of all its employees and in particular, Brett Armbrust , contrary to section 8(1) of the Act.
In particular:
On 16 September 2009, the defendant, by its employee or agent Kenneth Peter Oberg, directed Brett Armbrust (Mr Armbrust ) to attend at 128 Briens Road, Northmead, for the purpose of carrying out repairs to the hydraulic cylinder of a scissor lift owned by Coca Cola Amatil (Aust) Pty Ltd (" Task" ).
Mr Armbrust had been employed by the defendant since January 2005.
The Task involved:
(i) raising the scissor lift platform;
(ii) removing the hydraulic cylinder of the lift;
(iii) repairing the hydraulic cylinder; and
(iv) refitting the hydraulic cylinder to the lift.
The Task, and in particular steps (ii) and (iv) of the Task, required Mr Armbrust to place some or all of his body in the area beneath the lift platform and gave rise to the risk of Mr Armbrust being struck by the scissor lift platform as a result of the sudden descent of the lift platform.
The defendant failed to undertake a risk assessment which identified and considered the risks associated with the Task, and in particular, Steps (ii) and (iv) of the Task.
The scissor lift was fitted with a maintenance chock which, when applied, prevented descent of the lift platform.
The defendant failed to provide Mr Armbrust with such information, instruction and training regarding the risks associated with the Task as was necessary to ensure his health and safety, in that the defendant failed to:
(i) Provide Mr Armbrust with a written work method statement setting out a step by step process for carrying out the Task, including:
a. forbidding Mr Armbrust from placing some or all of his body in the area beneath the lift platform unless the maintenance chock was applied;
a. a requirement to release the maintenance chock only by raising the lift platform under power and rotating the chock out of the roller path and into its rest position;
b. a requirement to ensure that the lift platform was raised under its own power before removing the maintenance chock in order to avoid the risk of collapse of the lift; and
c. forbidding the forcing of the maintenance chock out of the roller path when the roller was resting on the maintenance chock;
(ii) provide Mr Armbrust with instruction and training in the safe procedures for removing the maintenance chock, including:
a. forbidding Mr Armbrust from placing some or all of his body in the area beneath the lift platform unless the maintenance chock was applied;
b. the necessity of releasing the maintenance chock only by raising the lift platform under power and rotating the chock out of the roller path and into its rest position; and
c. ensuring that the lift platform was raised under its own power before removing the maintenance chock was removed so as to avoid the risk of collapse of the lift; and
d. forbidding the forcing of the maintenance chock out of the roller path when the roller was resting on the maintenance chock.
The defendant failed to provide such supervision as was necessary to ensure the health, safety and welfare at work of Mr Armbrust in that the defendant failed to provide any supervision to Mr Armbrust whilst he was carrying out the Task.
As a result of the abovementioned failures, Mr Armbrust was placed at risk of being struck by the scissor lift platform whilst carrying out the Task.
As result of the abovementioned failures, Mr Armbrust was fatally injured. The defendant pleads guilty to the charge.
3When the matter was called on for hearing the defendant made no appearance. The corporation is in liquidation. The liquidator was notified of the hearing and has been served with the Application for Order. He opined in a letter to the Court that the company was being liquidated, it had limited funds and he could not assist the Court. It has been held by Haylen J in Inspector Batty v Goldsmith [2009] NSWIRComm 72 and Staff J in Inspector Wilkie v Anstee (No 2) [2007] NSWIRComm 20 that a fine for a breach of the Occupational Health and Safety Act 2000 is one that can be applied to a company in liquidation.
4Ms M McCarthy of counsel with Mr J Elliott, solicitor, appeared for the prosecutor. The prosecutor relied upon the following: Application for Order; User's Manual, Lift Tables; Morris Powerlec Pty Ltd Work Method Statement; wage records for Mr Armbrust; and ASIC Company Extract for Morris Powerlec (ACN 103 585 708) dated 25 October 2011. The prosecutor also relied upon affidavits (with annexures) of the following people: David Craig Webb, Inspector with WorkCover Authority NSW, sworn 26 October 2011; Jana Zeman, Engineer at TestSafe Australia, sworn 27 October 2011; Colin John Armbrust, Fitter at Morris Powerlec Pty Ltd (at the date of the incident), sworn 27 October 2011; Kenneth Peter Oberg, Service Manager with Morris Powerlec Pty Ltd, affirmed 27 October 2011; Lloyd Kenneth Yeatman, Boilermaker/Fitter with Morris Powerlec Pty Ltd, affirmed 28 October 2011; Christopher Roland Avon, Service Technician with Morris Powerlec Pty Ltd, sworn 28 October 2011; Rodney David Tatchell, Supervisor with Morris Powerlec Pty Ltd, sworn 31 October 2011; Terry Fouques, Senior Inspector with the WorkCover Authority of NSW, affirmed 31 October 2011; Nathan Daniel McDonald, Inspector with WorkCover Authority NSW, affirmed 1 November 2011; Grant Robert Claussen, Customer Service Technician with Amcor Beverage Cans, sworn 1 November 2011; and Joel Elliot, solicitor with WorkCover Authority of NSW, sworn 1 November 2011. From these documents the Court is satisfied as to the following facts:
Background
At all material times, the defendant was a company with its principal place of business located at Wetherill Park NSW, and another place of business located in Newcastle NSW (CB, Vol 2, Tab 12). The company employed more than 30 staff at its two locations.
As at 16 September 2009, the defendant:
a. was engaged in the sale and servicing of material handling equipment such as cranes and 'scissor lifts'.
b. held approximately 350 (ongoing) service contracts, as well as 60 -70 'one-off' contracts;
c. employed Mr Brett Armbrust ( Mr. Armbrust ) as a Service Technician.
Mr. Armbrust had been employed in this capacity since around January 2005. He held a trade certificate as a boilermaker and had undergone both formal and informal on the job training in relation to his role as a Service Technician. He had limited experience in undertaking repairs (rather than servicing) of scissor lifts and the specific job being undertaken by him was "rare.
Coca Cola Amatil Pty Ltd ( CCA ) is a company that manufactures and distributes canned and bottled beverages. CCA employs approximately 4000 employees Australia-wide, with 1000 employees employed at 12 locations across NSW. Approximately 500 of these employees work at CCA's site at Northmead NSW.
At all material times, CCA had contracted the servicing, repair and maintenance of certain of its plant and equipment, including five scissor lifts, to the defendant.
The incident and the risk
At approximately 10.30am on 16 September 2009, Mr Armburst sustained fatal injuries when he was struck and crushed by a scissor table whilst undertaking repair work on the table. At the time of the incident Mr Armbrust was attending the CCA site at Northmead to carryout repair works on a scissor lift table situated in an area at the site known as 'filing line one' (Task). Mr Armbrust had been onsite since the morning of the day of the incident to repair a minor leak in the hydraulic cylinder of the scissor table.
Mr Armbrust had attended the CCA site previously 13 August 2009 to undertake maintenance work on various cranes and scissor tables. It was during this routine maintenance a number of issues were identified on various cranes including a minor leak in the hydraulic cylinder of the scissor table involved in this incident.
Between approximately 8.00am and 8.30am on 16 September 2009, Mr Armburst arrived at the CCA Northmead site and met with the CCA Maintenance Manager, Mr Geoff Kennedy, the onsite contact. Mr Armbrust had a conversation with Mr Kennedy concerning the nature of the work that would be carried out that morning. This conversation formed the basis of a toolbox talk. At the conclusion of this conversation Mr Armbrust proceeded to carry out repairs on the scissor lift at filling line one.
The defendant's Service Manager, Mr Kenneth Oberg, had prepared a specific Job Safety Analysis for the repair job to be undertaken by Mr Armbrust, but did not provide it to Mr Armbrust before he commenced carrying out the Task. Instead it was faxed by Mr Oberg to CCA at some time on the day of the incident,
The scissor lift involved in the incident was manufactured by Safetech Pty Ltd. The model number was AS1-900 and the serial number was H-1559. The scissor lift weighed approximately 320 kg, with the load on the platform weighing in excess of 100 kg.
The scissor lift was fitted with a 'maintenance chock': a fabricated piece of metal on a pivot which is positioned at the base of the scissor lift next to the rolling path of the legs of the scissor lift. The chock had been designed to stop the lift's platform from lowering or falling. The chock could be engaged when the scissor lift had been raised to maximum height with the scissor legs similarly raised. Once the chock was flipped over, the chock acted as a physical stopper, preventing the rollers on the scissor lift's legs from being lowered as the fully engaged chock rested in the running path of the rollers.
Prior to the incident, Mr Kevin Gallagher, a CCA contractor reminded Armbrust to "put the catch on" and Mr Armbrust replied that he had "already done that", although Mr Gallagher did not actually observe the maintenance chock to be engaged.
At about 8.41am, Mr Ambrust contacted his colleague and fellow boiler maker Mr Lloyd Yeatman by mobile telephone. Mr Yeatman says that to the best of his recollection, the call was in the following terms.
Armbrust: "Lloyd, have you worked on these scissor tables?"
Yeatman: "Yes, however it has always been with someone else. When I had worked on them it was with Rodney (Tatchell)".
Armbrust: "I'm a bit scared".
They then had a bit of a laugh and discussed personal issues. Mr Yeatman did not consider that Mr Armbrust was actually scared.
No one saw Mr Armbrust electrically isolate the scissor lift; however, Mr Kennedy observed there to be a padlock on the electrical isolator either a few hours after the incident or the following day.
At about 10am, both Mr Kennedy and Mr Gallagher had a conversation with Mr Armbrust in the CCA maintenance workshop. By this time, Mr Armbrust had successfully removed the hydraulic cylinder from the scissor lift and was in the process of changing its seals.
In the course of changing the seals Mr Armbrust spilt what was subsequently determined to be approximately 1.5 litres of oil from the cylinder of the scissor lift. He did not obtain oil to refill the cylinder before reinstalling it with the result that the scissor lift's hydraulic system contained less than half the required amount of oil (3 litres) for operation. As a consequence, there was insufficient oil pressure in the cylinder to arrest a descending platform.
Mr Armbrust returned to the scissor lift at filling line 1 and reinstalled the cylinder. In order to do so, he needed to place some of his body beneath the lift platform. In contrast, when servicing the lift, there was no requirement for an employee to place some of their body beneath the platform.
At approximately 10.30am, Mr Armbrust's body was discovered by a customer service technician, Mr Grant Claussen, who was walking past the scissor lift. Mr Armbrust was laying on top of the raised walkway at filling area one, with his head and upper torso underneath the scissor lift.
Mr Armbrust died whilst trapped under the scissor lift.
After the incident, a red-handled screwdriver was found on the floor directly under the scissor lift. The safety chock was in the disengaged position. New score marks were found on the underside of the safety chock.
Accordingly, after reinstalling the hydraulic cylinder, Mr Armbrust may have used the screwdriver to disengage the chock causing the scissor lift to collapse. Testing following the incident confirmed that this was physically possible and that when the incorrect amount of oil was present, removal of the maintenance chock in this fashion caused the scissor lift to violently collapse.
When the correct amount of oil was present, the scissor lift was observed to perform without fault with forcible removal of the maintenance chock resulting in the platform falling only a short distance.
Defendant's systems of work prior to the incident
The defendant operated a database system for regular servicing. Following the service, reports were submitted to Mr Oberg, and any follow up work or customer requests were assessed and then allocated to a service technician by Mr Oberg. Mr Oberg allocated the Task to Mr Armbrust a few days prior to the incident.
Ordinarily, instructions in the form of a job sheet were then generated and handed to the service technician allocated to the job. The job sheet contained the site address, contact person and job number.
A Job Safety Analysis (JSA) or Safe Work Method Statement (SWMS) was included in the job sheet depending on the site and task to be undertaken and related to the piece of plant to be serviced. The process used by the defendant was to adopt a generic JSA for routine maintenance work and only change the date.
The defendant's generic JSA for servicing of scissor lifts makes no reference to the use of the maintenance chock.
The specific JSA for the Task was not provided to Mr Armbrust before he commenced carrying out the Task.
In any event, the specific JSA/SWMS did not require employees, including Mr Armbrust to raise the lift's platform under power prior to removal of the maintenance chock.
Further, the specific JSA/SWMS:
(a) Did not forbid employees, including Mr Armbrust, from placing some or all of his body in the area beneath the lift platform unless the maintenance chock was applied;
(b) Did not require employees, including Mr Armbrust, to release the maintenance chock only by raising the lift platform under power and rotating the chock out of the roller path and into its rest position;
(c) Did not forbid employees, including Mr Armbrust, from forcing the maintenance chock out of the roller path when the roller was resting on the maintenance chock.
The defendant's service manager, Mr Oberg, considered that it was the responsibility of employees to amend a JSA to their specific needs and requirements and considered that employees had received sufficient informal training to undertake this task.
The defendant's service technicians had a hazard book in which they could document any hazards identified on a site.
The defendant also had an informal system whereby if a safety issue was identified, or if an employee required further instructions, they could contact Mr Tatchell (Supervisor) or Mr Oberg for advice. Mr Oberg states that Mr Armbrust raised no relevant issues with him prior to the incident.
Mr Armbrust received both formal and on-the-job training relevant to his role, components of which related directly to working with scissor lifts. For example, Mr Armbrust had completed an electrical disconnect/reconnect course, paid for the by the defendant. The defendant also had documented procedures and provided on the job training in relation to electrical isolation. Each service technician was also provided with a padlock and associated equipment for such purposes.
Training also included a mentoring program. The mentoring was one-on-one and lasted approximately three (3) months, covering a range of products and plant. However, it does not appear that any the training provided to Mr Armbrust in the course of the mentoring program was directly related to scissor lift repair work.
The defendant's employees had differing levels of awareness of the safe procedures for removing a maintenance chock in the course of carrying out the Task. Mr Yeatman said that there was "no set procedure" and made no mention of the safe procedure for removal when asked. Mr Avon was aware of the correct procedure. Mr Colin Armbrust was aware of the correct procedure but derived his knowledge from his education and experience prior to working for the defendant. Mr Tatchell was aware of the need to install a chock prior to working on a scissor lift but was unsure how "easy" it would be to disengage it.
Further, some of the employees responsible for mentoring and/or training Mr Armbrust were themselves inadequately trained. For example, in response to a query, when interviewed, about whether a scissor lift would lower if power was disconnected, Mr Avon said: "Other than disconnecting the hose I can't say, it could stay there it could go down, if we assume it is working fine we can assume it will stay up there". Mr Tatchell said that in circumstances where the table was not under power, was low on oil, the table was raised and safety chocks were off, he was "not sure whether it would come down slowly because the system would still be pressurised" and could not think of a scenario that would cause the lift platform to fall or rapidly descend unless "something major gave way...or [a] major oil leak". He said that "you...need power to drop the table". Mr Colin Armbrust (who did not train Mr Armbrust) also could not give any "scenario of this table falling, freefall, fast".
Mr Oberg stated that "the only way you can get the [chock] out is to raise [the platform] under its own system" and that "if there is no power to the table, there is no movement to the table". Mr Oberg denies he conveyed the latter belief to Armbrust.
Information about the risk of collapse of scissor lifts and appropriate control measures was contained in a document titled "Lift Tables User's Manual: How to install, use and maintain" issued by Safetech ( Manual ). At page 2 of the Manual it states, inter alia:
"To release the maintenance chock/s, raise the lift table and rotate the maintenance chock out of the roller path and into its rest position.
It is essential that the lift table is raised from the maintenance chock under its own power. This is the only way to ensure that the hydraulic system can hold the weight of the lift table. Do not force the maintenance chock out of the roller path when the roller is resting on the maintenance chock".
Mr Oberg had read the Manual, if at all, "ten to fifteen years" previously. He was not sure whether employees, including Mr Armbrust, were supplied with the Manual. Mr Yeatman had not seen it. Mr Tatchell had not seen it. Mr Colin Armbrust had seen it. The defendant had no system in place to ensure service technicians had read and understood the information in the Manual.
Mr Oberg had the final word as to the competency of Mr Armbrust to carry out the Task unsupervised. He formed his opinion as to competency based on Mr Armbrust's general abilities together with Mr Armbrust's self-assessment of his own competence. However, Mr Yeatman, an employee with a similar length of service with the defendant, had only ever undertaken a similar task under supervision. Mr Avon, a more senior employee, had also been working with another service technician the first time that he undertook a similar task and had only undertaken it approximately six times over 9 and a half years of service.
The defendant had not conducted any risk assessment for the Task to be carried out at the CCA site. Mr Oberg had never visited the CCA site.
The defendant was placed in voluntary liquidation on 7 January 2011.
The defendant has no prior convictions.
[2]
Relevant Principles
5In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).
6Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).
7Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]:
The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
8Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]).
9The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, Staff J observed at [9]:
In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:
'[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'
Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia :
. . .
(2) Aggravating factors
. . .
(d) the offender has a record of previous convictions,
...
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
. . .
(3) Mitigating factors
. . .
(e) the offender does not have any record (or an significant record) of previous convictions,
...
(g) the offender is unlikely to re-offend,
...
(k) a plea of guilty by the offender (as provided by section 22)
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23)
. . .
[3]
Consideration
10In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464, ad idem with the view expressed in Markarian (at 474):
... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...
And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:
In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ...
11Given the matter proceeded ex parte , the prosecutor is required to prove the following beyond reasonable doubt: that the defendant was an employer at the time of the alleged breach; that an employee's health or safety was exposed to risk; that the employee was at work at the time; that there was a causal nexus between the defendant's breach and the risk to the employee's safety.
12The defendant corporation, through its Service Manager, Mr Kenneth Oberg, directed its employee, Mr Brett Armbrust, to carry out repairs to the hydraulic cylinder of a scissor lift owned by Coca Cola Amatil Pty Ltd ("Coca Cola") at the Coca Cola premises. The task involved: raising the scissor lift platform; removing the hydraulic cylinder of the lift; repairing the hydraulic cylinder; and refitting the hydraulic cylinder to the lift. The task, and, in particular, the second and third steps of the task, required Mr Armbrust to place some or all of his body in the area beneath the lift platform. That gave rise to the risk of Mr Armbrust being struck by the scissor lift platform if there was a sudden descent of the lift platform. The scissor lift was fitted with a maintenance chock which, when applied, prevented descent of the lift platform. Mr Armbrust's body was beneath the lift platform when he released the maintenance chock.
13The defendant failed to risk assess the task. The release of the chock had to be safely performed by raising the lift platform under power and rotating it. The lift collapsed on Mr Armbrust. While Mr Oberg did design a Safe Work System for the task, he designed it in a formative manner without going to the site and sent it to Coca Cola, not to Mr Armbrust.
14There was, therefore, no safe system of work in place and Mr Armbrust was not thereby properly instructed. There was a foreseeable element to the offence which makes it more serious.
15I am satisfied the evidence established the defendant corporation was an employer and Mr Armbrust was its employee and was at work at the time of the incident. Mr Armbrust's health and safety was exposed to the risk of being struck by the fall of the scissor lift platform when, in the performance of the task, he was not warned of the necessity to test the working of the hydraulics before removing the chock. The defendant's breach was its failure to properly risk assess the task, failure to ensure a safe work method statement was designed and its failure to properly supervise and instruct.
16I find this was objectively a most serious offence. In this circumstance, the words of Hill J in Tyler v Sydney Electricity (1999) 47 IR 1 at [5] are most apposite:
The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant.
Here the known risk became a reality with the death of Mr Armbrust.
17There is a need to consider an element of deterrence in the consideration as to penalty. The Full Bench encapsulated the approach to deterrence in the following passage in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 79; (2000) 49 NSWLR 610 at [74]:
... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
In Capral , the Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388):
the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to the occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.
18In dealing with the issue of specific deterrence, the Court in Capral noted at [76]:
... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ...
and further:
The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence.
and at [77]:
In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.
19As the defendant is no longer an operational entity, considerations of specific deterrence do not arise.
20General deterrence is to be given significant weight in determining the appropriate penalty to be applied. In this regard, a small nominal fine will not satisfy the element of general deterrence, nor the requirement for punishment. The imposition of a small or nominal fine in respect of a serious breach of the Act has little or no effect as a deterrent to other possible offenders: Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [5] citing EPA v Capdate Pty Limited & Phillips (1992) 78 LGERA 349 (at 353). It has been held general deterrence is an important consideration in penalty - even where the corporate defendant may be unlikely to pay any penalty: Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57.
21The maximum penalty for the defendant is $550,000 as this is the defendant's first offence. In Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [4] it was held the maximum penalty available for an offence reflects the public expression by Parliament of the seriousness of the offence ( R v H (1983) 3 A Crim R 53 (at 65)); a large penalty indicates "the gravity of the offence"; the maximum penalty is provided in relation to a worst case and it is the task of the Court to assess the relative seriousness of the offender's particular offence in relation to a worst case; and, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum.
22As the defendant made no appearance there are few subjective features of the offence to be considered in mitigation. However, the prosecution has fairly informed the Court the defendant co-operated fully with the WorkCover Authority during the investigation.
23As to the financial position of the defendant, it is to be accepted in terms of general sentencing policy that the means of a defendant are relevant. As was stated in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [27]:
This consideration may, in appropriate cases, involve a careful examination of the means of the defendant, and consideration of the means of the defendant in fixing the amount of any penalty or fine... This is, in any event, required by s 6 of the Fines Act 1996 as it was by the predecessor provision in the now repealed s 440AB of the Crimes Act 1900. It is to be observed, however, that a consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty.
24The defendant is in the process of being liquidated.
25The prosecutor submits that the offence should be found proven and the defendant convicted and fined accordingly. It seeks a moiety of any fine imposed for the WorkCover Authority of NSW and the usual orders for costs and disbursements in the sum as assessed.
26In the circumstances, I find the offence proven.
27I give some weight to the evidence Mr Armbrust was a qualified tradesman who had some rigorous on-the-job training throughout his four and a half years employment with the defendant. The defendant corporation clearly had a module for safe working. It even designed and sent a safe work module for this task but it sent it to the client rather than its employee (who was at the client's worksite) and in that designed system there was a failure to issue a warning that the hydraulics be tested prior to the removal of the chocks.
28The defendant had no prior conviction. I take into account the corporation is in liquidation but the penalty must reflect the seriousness of the offence.
29I find the defendant guilty. The defendant is fined in the sum of $150,000 with a moiety to the WorkCover Authority. There shall be an order for costs against the defendant.
[4]
Orders
30The Court makes the following orders:
In Matter No IRC771 of 2011, I find the defendant guilty of the offence as charged.
The defendant is fined in the sum of $150,000 with a moiety to WorkCover Authority of New South Wales.
The defendant to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.
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Decision last updated: 01 December 2011