Inspector Hughes v Advanced Metal Door Frames Pty Ltd

Industrial Relations Commission (NSW)|2013-01-31|Before: Backman J, Mr J

Judgment 1Advanced Metal Door Frames Pty Ltd (AMDF) pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). Terrence Michael Frendo, a director of AMDF at the time of the offence, also pleaded guilty to one offence under s 8(1) by virtue of s 26 of the Act. 2The offences arose from the circumstances of an accident which occurred at AMDF's premises on 28 June 2010 when one of its employees, Robert John Dearing, was operating a machine known as a SAFAN brake press (the press). The press was used by AMDF's employees to fold, bend or form sheet metal for the production of metal door frames. Mr Dearing was operating the press to fold spreader bars when his thumbs were almost severed by the blades on the press. An investigation into the operation of the press following the accident revealed that at some earlier time the light curtain guarding system on the press, known as TIROPS, had been disabled by a person, or persons, unknown thereby enabling the press to continue operating in an unguarded state. 3The charges against both defendants rely on the following acts and omissions on the part of AMDF: The defendant failed to ensure that the Brake Press was safe and without risk to health and safety when properly used, in that it failed to undertake the following measures: i. ensure that the safety devices fitted to the Brake Press and in particular the Tirops Press Brake Guarding Equipment ("the Light curtain guarding system") were adequately maintained, properly aligned, tested, operational and enabled at all times that the Brake Press was being utilised to undertake the Work; ii. undertake an audit of machine guarding of plant at the Premises, and in particular of the Brake Press to ensure that all safety devices were adequately maintained, properly aligned, tested, operational and enabled at all times that the Brake Press was being utilised to undertake the Work; d. The defendant failed to provide a safe system of work for the Work in that it failed to undertake the following measures: i. undertake a risk assessment of the Work, which identified the risk and the control measures by which the risk could be eliminated or minimised, before permitting employees to commence the Work; ii. providing a task specific Safe Work Method Statement or Safe Operating Procedure for performing the Work and the use and operation of the Brake Press; iii. having in place a formal, documented system of competency assessment for all employees, including Mr Dearing, who were required or permitted to perform the Work; iv. having in place a formal, documented system of pre-operational assessment of plant to ensure that all safety devices on plant including the Brake Press, were adequately maintained, tested and operable prior to the Work being commenced; e. The defendant failed to provide adequate information, instruction and training to its employees in that it failed to undertake the following measures: i. providing formal documented induction safety training or other appropriate safety training to every employee required to operate the Brake Press, as to its proper, safe operation, the risk and the control measures, so as to avoid the risk when performing the Work at the premises; ii. providing its employees with information, instruction and training in the Safe Work Method Statement or Safe Operating Procedure for performing the Work and the use and operation of the Brake Press before permitting employees to commence the Work; iii. providing formal documented information and training to its employees, and particular Mr Dearing, in relation to the hazards of suffering crush injuries from the unguarded moving parts (sic) the Brake Press, and in particular the upper and lower dies of the Brake Press while it was operating; iv. providing formal documented information, instruction and training to its employees, including Mr Dearing that they were not to undertake the Work in circumstances where all safety devices on the Brake Press, in particular the Light curtain guarding system were not enabled and operating correctly; f. The defendant failed to provide adequate supervision to its employees in that it failed to undertake the following measures:

Systems of work prior to the accident 14According to the Agreed Facts, the systems of work in place at AMDF's premises at the time of the accident were informal and undocumented. The Agreed Facts sets out a convenient summary of those systems which is reproduced below: AMDF did not have systems in place to ensure that the safety devices fitted to the Brake Press and in particular the Light curtain guarding system were adequately maintained, properly aligned, tested, operational and enabled at all times that the Brake Press was being utilised to undertake work. AMDF did not have systems in place to undertake an audit of machine guarding of plant at the Premises, and in particular of the Brake Press to ensure that all safety devices were adequately maintained, properly aligned, tested, operational and enabled at all times that the Brake Press was being utilised to undertake the work. AMDF did not undertake a risk assessment of the use of the Brake Press, to identify any risks and the control measures by which any risks could be eliminated or minimised, before permitting employees to utilise the Brake Press. AMDF did not provide to its employees any task specific Safe Work Method Statement or Safe Operating Procedure for the use and operation of the Brake Press. AMDF did not have in place any formal, documented systems of competency assessment for its employees, who were required or permitted to perform work on plant and machinery including the Brake Press. AMDF did not have in place any formal, documented systems for pre-operational assessment of plant to ensure that all safety devices on plant including the Brake Press were adequately maintained, tested and operable prior to work being commenced. Supervision At the time of the incident there was no formal or documented system of supervision at AMDF. Mr Brennan as Factory/Production Manager was the senior supervisor. Mr Brennan relied on two Foremen on each day to assist with supervision in the 'folding, and the 'welding' side of the factory. Employees generally received verbal instructions from Ray Brennan, (Factory Manager), Les Howarth (Welding Foreman) and Russell Townsend (Folding Foreman). These supervisors received their instructions from written job cards provided by the Administration section of AMDF. The supervisors would then proceed to assign particular employees to various tasks in order to complete the job cards. Employees were expected to perform the tasks under the supervision of the Factory/Production Manager or the appropriate foreman and relay any concerns regarding safety issues verbally. Mr Dearing stated that he had operated the SAFAN brake press on a number of occasions without supervision and without reporting any suspected faults. Mr Howarth stated that Dearing had operated the SAFAN brake press previously. On the day of the incident Mr Dearing was being supervised on the welding side by his usual supervisor, Mr Howarth. Mr Dearing left his assigned work area. Mr Howarth was not supervising the work he was performing on the Folding side of the premises. There was no formal system in place at the premises at the time of the incident to ensure regular checks were performed to ensure the safe functioning of plant prior to use nor was there any formal system in place where employees could report malfunctioning plant. It was expected that employees who were authorised to use those machines would visually inspect plant at the premises before commencing any work and if any issues concerning the plant were identified the employees would verbally notify the appropriate supervisor. Training There was no formalised or documented training system adopted by AMDF. No records were kept by AMDF as to the competency or training levels of any of its employees who undertook on the job training. Employees, who could demonstrate to their supervisors a basic level of competency in performing a particular task, would be permitted to continue carrying out the task. AMDF did not provide its employees with information, instruction and training in documents such as a Safe Work Method Statement or Safe Operating Procedure for the use and operation of the Brake Press before permitting employees to commence work on such plant. Mr Dearing had no formal qualifications in any trade and mainly performed tasks of painting, welding and grinding of hardware and finished door frames. Mr Dearing received on the job training from his employer in regards to these tasks. Mr Dearing held no formal training or expertise in the task of folding spreader bars.

The investigation 15Some hours after the accident police attended the premises and conducted an investigation. The press was inspected at that time by the police who noticed that the guarding system had been disabled. The Agreed Facts recorded an extract from a NSW Police COPS Report which states: ... a laser which would normally function as a safety mechanism had been moved to disable its function: This movement required the use of an allen key to unscrew two screws and would need to have been a deliberate act. 16Later on the same day WorkCover inspectors arrived at the premises and commenced an investigation. An inspection of the press established that bypassing and de-activating the guard system enabled it to be used in an unguarded state. The inspectors also noted the absence of any signage informing users that the guarding system was not working. Later, the press was removed from the premises for the purpose of conducting a formal inspection. The function of the guarding system was subjected to testing and a written report delivered the following findings: the Light curtain guarding system had been by-passed in the control panel electronic boards and wiring; and the Brake Press functioned properly, and completely with the Light curtain guarding system disabled, with objects interrupting the light beams having no influence on the ability to operate the machine; and the laser beam units were badly misaligned, and the guard did not work properly; after the laser light sensors were realigned, and the Light curtain guarding system was enabled on the control panel electronic boards and wiring, the laser light guard operated to effectively prevent the Brake Press from completing its cycle. The enabled guarding prevented the brake press from operating whether or not the light beams were interrupted. 17The formal investigation also concluded that the press was only capable of operation once the guarding system was bypassed. The investigators were not able to determine who had bypassed the guarding system or when this had occurred.

Disputed facts 18I turn now to consider the evidence and submissions with regard to the facts in dispute. 19One disputed fact focussed upon the reliance placed by the defendant on the working relationship between Mr Dearing and Mr Howarth. According to the Agreed Facts, Mr Dearing had worked with another door frame manufacturing company, HowHua Steel Door Frames Pty Ltd (HowHua), for about two years before moving to AMDF. Other evidence revealed that while at HowHua, Mr Dearing had worked with Mr Howarth. The defendants submitted that the longstanding relationship between Mr Dearing and Mr Howarth supported an inference that Mr Howarth had acceded to a request by Mr Dearing to allow him to use the press when he should have refused. It was submitted that it was open to the Court to find that Mr Howarth had a lapse of judgment as a supervisor. The effect of this conduct was said to impact on the defendants' culpability because Mr Howarth's lapse was "hardly foreseeable" by the defendants who believed Mr Dearing was untrained. 20In the Court's view, it is not necessary to draw any inference, if one were available, based on purported evidence of a longstanding relationship between the two men. Apart from the fact that according to the evidence both men had worked at HowHua before commencing work at the defendants' premises, there is no evidence of any "longstanding relationship" between the two, either in a professional or personal capacity. Mr Dearing commenced work at the defendants' premises in September 2009. Mr Howarth did not commence working there until April 2010 after which he supervised Mr Dearing's work on the welding side of the premises. 21The evidence does give rise to a reasonable inference that on the day of the accident, Mr Dearing asked Mr Howarth for permission to go across to the "folding side" of the premises to fold spreader bars. This particular matter was not in dispute, having been conceded by the defendants in written submissions. What remained in dispute was whether Mr Howarth's conduct (in giving permission), operated to minimise the defendants' culpability. 22According to the evidence Mr Howarth was unsure whether Mr Dearing had been shown how to operate the press. He said he did not show Mr Dearing how to operate the press. Nor did he supervise him while he was operating the press. Mr Howarth did not know whether Mr Dearing had received any training or instruction from someone else on how to use the press. In his oral evidence, Mr Howarth appeared uncertain as to whether Mr Dearing had even used the press prior to the accident. When this evidence is considered in combination with Mr Howarth's role as Mr Dearing's supervisor on the day of the offences, as well as the fact that Mr Dearing normally worked on the welding side, not on the folding side of the premises, it is reasonable to conclude that Mr Howarth might have had a momentary lapse of supervision. The significance of this will be given consideration later in these sentencing reasons. 23Another matter in dispute focussed upon the extent of Mr Dearing's training on the press. According to the defendants they were of the belief that Mr Dearing was untrained in its operation. No evidence was forthcoming as to the basis of this belief. There was evidence that Mr Dearing was shown how to operate the press, which could be construed as constituting some "informal training". 24The evidence on this issue was that Mr Dearing said it was "possible" that Russell Townsend, the foreman on the folding side at the time of the accident, had shown him how to use the press. The amount of time Mr Townsend spent on this activity was, "probably five minutes". Mr Townsend on the other hand denied providing any "training" to Mr Dearing on how to operate the press. Mr Dearing said that he operated the press to fold spreader bars when he had nothing else to do. He did not know how to programme the press so someone would set it up for him. In an interview conducted by the WorkCover investigator, Mr Dearing was asked whether he was provided with any information on the safe use of the press at AMDF's premises. He said that he was told, "don't get your hands caught, that's about it". Later in the same interview in response to a question whether he received any instructions on the safe operation of the press, he said, "I was shown how to push the button and take my hands out of the way". In response to a question whether he was trained to use the press, he replied, "I don't think so. I was shown how to use when I need to use it". 25In oral evidence during the hearing, Mr Dearing affirmed that he had used the press to fold spreader bars. He said he did so when he had nothing else to do. He said he always asked someone beforehand (one of the supervisors on the folding side) and they always gave permission. He said that someone always programmed the press for him so he could fold the spreader bars. He also said that at times a supervisor looked over his shoulder while he was using the press to ensure he was using it properly. 26Other workers at the premises at the time of the accident also gave evidence which was largely consistent with the evidence of Mr Dearing as to the extent of the instructions given to him on how to operate the press. Adrian Simpson, for example, a process worker on the welding side, said he was shown how to use "the brake presses" on the folding side by Mr Townsend. In response to a question as to what was the full extent of his training by Mr Townsend on the operation of the brake press, he said: Yeah, it wasn't really training really, because it was just showing that this is what happens, and this what you do. You put this 40 millimetre width piece of steel or sheath in there, you push the button or the foot peddle, and the blade comes down and then folds it. 27Raymond Brennan, employed by AMDF as its production manager at the time of the accident, said in an interview that he trained AMDF workers how to operate the press. He said the training was informal and consisted of showing the workers how to use it and then observing them in order to assess their competency. No formal records of this procedure were made. 28The conclusion is available from this evidence that Mr Dearing was shown how to use the press by someone, possibly Mr Townsend. Moreover, a supervisor, or supervisors, observed his work to ensure he was operating the press correctly. The extent of any safety instructions issued to Mr Dearing were limited to a verbal caution not to get his hands caught. He was not trained in the start up procedure or how to programme the press in relation to various bending cycles. The training of other employees in relation to the operation of the press was also limited to showing them how to use it in the presence of a supervisor who then observed them operating the press in order to assess their level of competency. No records of this procedure were made. 29Another area of dispute concerned the number of times and the length of time Mr Dearing spent operating the brake press. How this particular issue was said to impact upon the sentencing process was not satisfactorily explained. Nevertheless, the evidence on this issue, in the Court's view, was inconclusive. In his WorkCover interview Mr Dearing said he "could have" used the press 20-30 times. Mr Dearing also said that on the day of the accident he had used the press for, "about an hour or two", or "half an hour to an hour". No other evidence was forthcoming in relation to this issue except for a statement made to the police by Timothy Martin, employed by AMDF as a factory labourer on the folding side at the time of the accident. Mr Martin told police that he recalled Mr Dearing using the press "periodically". He could not recall the length of time Mr Dearing had spent using the press. Mr Howarth's evidence insofar as it impacts on this issue has been earlier referred to. Mr Howarth had been working at AMDF for about two months prior to the accident (April to June 2010). His evidence concerning the number and duration of times Mr Dearing had operated the press during this period was not consistent. In a WorkCover interview, Mr Howarth said that Mr Dearing had operated the press on other occasions prior to the day of the accident. He said that on those occasions, Mr Dearing was folding spreader bars. In a later statement, he said he did not recall whether Mr Dearing had worked on any of the presses at the premises, and, in particular, whether he had operated the press involved in the accident. In oral evidence during these proceedings, Mr Howarth at first said he had seen Mr Dearing operating the press before the day of the accident. Later he said he did not know if Mr Dearing had operated it, although he had seen him folding spreader bars on another press (known as the Adira press). 30Given the state of this evidence, the Court is unable to form a concluded view with regard to the number of times, or the duration of time, Mr Dearing spent operating the brake press involved in the accident. 31In written submissions, the prosecution nominated other matters in dispute, however, having heard the parties in oral submissions it appeared that these matters were no longer in contention. One matter concerned the sequence of events which preceded the accident (described by the prosecution as, "the mechanism by which Mr Dearing suffered the injury"). In his evidence, Mr Dearing outlined the sequence of events immediately preceding the accident: Q. On the day of the accident, can I just take you to the incident itself, can you just outline the steps that you took in relation to placing the piece of spreader bar on to the die. Do you recall that? A. Doing that? Q. Do you recall what happened next? A. I pushed the pedal down and I dropped the spreader bar the other side and dropped the pedal down. Q. Can you just explain what happened in terms of the piece of metal falling. Did it fall down the back? A. Yes it fell down the back of the machine. Q. What did you try and do? A. I couldn't try and do anything because by the time I dropped forward and pushed the button the weight on my foot ... Q. You lent forward and tried to get the piece of metal? A. No, I didn't. I dropped it and because I lent forward the weight of my foot pushed the button. Q. Where were your hands at that time? A. Squashed. 32The prosecution was concerned to rebut any suggestion that might have been advanced on behalf of the defendants that Mr Dearing's accident was a direct consequence of "skylarking" on his part, or because of some deliberate intention to injure himself. No such suggestion, however, was made on the defendants' behalf. In any event, the evidence of Mr Dearing extracted above facilitates a reasonable conclusion that the accident was caused by Mr Dearing's inadvertence in pressing the foot pedal of the brake press. 33A further matter nominated by the prosecutor as being in dispute was described as "the circumstances which led to the TIROPS light curtain guarding system being placed into bypass mode and therefore disabling the guarding system or the SAFAN brake press". 34The evidence in relation to this issue has been touched upon earlier in these sentencing reasons. That evidence concerned the investigations conducted by the police and by WorkCover inspectors after the accident in an attempt to discover how and why the guarding system had been disabled. According to the police, the disabling of the guarding system constituted a deliberate act. Neither investigation was able to detect who might have been responsible, and the workers who operated the machine did not appear to have been aware that the guarding system had been rendered inoperable. Inspector Hughes and Mr Fraser were unable to determine when the system was bypassed, or the precise location of the fault. 35All of this material formed part of the Agreed Facts and was therefore not in dispute. In any event, the defendants, in written submissions, confirmed that there was no issue with regard to the reports of Inspector Hughes and Mr Fraser. Both men were required for cross-examination, and their evidence was described by the defendants as "frank and forthright".

Objective factors 36The system of work in place at AMDF's premises for the operation of the press was patently unsafe in a number of respects. No risk assessment had been undertaken prior to permitting employees to operate the press. There was no safe working method or safe operating procedure implemented for the use and operation of the press. AMDF had devised, as part of its induction and recruitment a checklist (which was completed by factory employees) which set out a number of safety rules. According to the checklist, these rules were to be explained to all employees. Rule 1 stated, "Only authorised operators with training records to operate machinery". This rule was not enforced. The evidence disclosed that no training records were made for those employees who received instruction on how to operate the press. Mr Howarth, who was Mr Dearing's supervisor, was not aware of this rule. The very limited instruction given to Mr Dearing for operating the press hardly constituted adequate training in the safe operation of the press in any event. In addition, Mr Dearing, who was not competent to operate the press, was not properly supervised while he was engaged in that function. 37It is my view that Mr Howarth, in his role as supervisor, should not have given permission to Mr Dearing to operate the press. I accept that Mr Howarth was unaware of the rule which required only authorised operators with training records to operate the press. Nevertheless, Mr Howarth's evidence established that he was unsure whether Mr Dearing knew how to operate the press and he did not know whether Mr Dearing had received any training or instruction on how to use the press. Mr Howarth knew that Mr Dearing's usual sphere of duties did not include the operation or use of the press. In these circumstances it is reasonable to conclude that Mr Howarth, no doubt an experienced and competent supervisor, had a momentary lapse of supervision when he allowed Mr Dearing to operate the press. Mr Howarth, of course, did not know that the press had been disabled and was therefore a very dangerous piece of machinery, particularly when operated by an untrained and inexperienced worker. 38However, this is not a case where, notwithstanding the prior implementation of a safe system for the operation of the press, or the provision of a high level of training, instruction or supervision, an accident occurs through employee inadvertence and a failure on the part of the supervisor to properly discharge his or her duties: cf Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 where it was said at [33]: Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case. 39In contrast to the particular circumstances postulated in Morrison v Powercoal, Mr Howarth's momentary lapse of supervision arose in the context of an absence of any formulation and implementation of a safe system of work in the operation of the press, and a failure on the part of AMDF to provide adequate training, supervision or instruction to those employees who used the press. Mr Howarth's lapse of supervision therefore, has little, if any, impact on the objective seriousness of the offence. 40The defendants contended that Mr Howarth's conduct "was hardly foreseeable". One basis for the contention was the purported belief that Mr Dearing was untrained. No evidence was led which demonstrated that the defendants knew Mr Dearing was untrained. Foreseeability is a relevant consideration when assessing the objective seriousness of an offence. However, the proper focus is on the reasonable foreseeability of the risk to safety, here, the risk of suffering crush injuries from the unguarded moving parts of the press. This risk was reasonably foreseeable in circumstances where the defendants did not have in place any systems to ensure that the safety device (the TIROPS light curtain guarding system) on the press was adequately maintained, tested and properly functioning prior to work being undertaken on the press. The press was used on a daily basis by workers, including Mr Dearing while the guarding was inoperable thereby exposing them to a serious risk to their safety. In the circumstances, the seriousness of the risk can be said to have manifested itself in the serious injuries received by Mr Dearing. Moreover, measures for obviating or eliminating the risk were readily available. These measures include the provision of appropriate training on the use of the press, regular maintenance to ensure the guarding system was functional, and the implementation of supervisory regimes to ensure that inexperienced and largely untrained employees such as Mr Dearing were not permitted to operate the press.

Maximum penalty 41Neither defendant has prior convictions. AMDF therefore faces a maximum penalty of $550,000 and Mr Frendo, $55,000.

General deterrence 42The dangers posed by unguarded machines have been the subject of frequent comment in this jurisdiction. Indeed, the number of times defendants have been prosecuted in this jurisdiction for breaches of safety legislation arising from failures to ensure machines are not left in an unguarded state are so numerous that general deterrence must assume particular significance. Accordingly, this Court endorses and adopts the comments made by a Full Bench in Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210 at [9]: The need for the application of the principle of deterrence in the sentencing process cannot be underestimated here. The offences reveal yet another serious incident involving unguarded machinery where the risk to safety, although obvious, was ignored. We adopt the observations of Walton J, Vice-President, 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) (2002) 112 IR 1 concerning the importance of the principle when considering the objective seriousness of offences involving unguarded machinery: [41] . . . 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 (NSW) v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (NSW) (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at par 53. [42] The dangers presented by an unguarded saw are well known and management at all levels should be vigilant to ensure that unguarded machinery is not used . . . 43Given the prevalence of offences involving accidents and injuries arising from the use of unguarded machinery, it is of the utmost importance that businesses using dangerous machinery should be made aware that the failure to address the risks posed by the use of such machinery will result in serious penalties.

Specific deterrence 44After the accident, the press was taken out of service and sold and a replacement press was purchased which had an operable guarding system. In addition, AMDF put in place a range of safety measures which are set out in the Agreed Facts:

Daily Tool Box Talks
All guards are checked before start up each day, and again at resumption of work after every given break including tea breaks and lunch breaks
Operator Register for each plant item to record which employee has been deemed competent through on the job training to use that particular plant item
Operator log in and log out book for each plant item to track employees use of a particular plant item
Direct reporting of issues of OHS issues by employees to Foremen
Improved guarding fitted to plant, safety fencing and pressure sensitive safety matting provided around plant with dangerous moving job parts
Power leads suspended from ceilings via running cables to prevent trip hazards
Forklift driver is guided by an observer when in use
Replacement Brake Press with a brake press that has an operational guarding system; and
Increased presence of Director Terry Frendo on factory floor to review day to day operational issues and identify areas of improvement. 45The implementation of these measures at AMDF's premises impact on the necessity to apply the principle of specific deterrence. Nevertheless, a small component of the penalties to be imposed will reflect the fact that AMDF continues to operate in an industry which utilises machinery, such as the press, which, in turn, raises the potential for further exposure to risk of injury if appropriate safety measures are not in place and management is not constantly vigilant to ensure that unguarded machinery is not used at any time.

Subjective factors 46The defendants are not adversely recorded and are therefore entitled to leniency normally extended to first time offenders. 47The defendants submitted that they each entered pleas of guilty at an early stage. This was not contested by the prosecutor. I propose therefore to award a discount of 25 per cent reflecting the utilitarian benefit derived from the pleas of guilty entered by both defendants. 48The defendants also co-operated with WorkCover throughout its investigation. In addition, both defendants expressed remorse and accepted responsibility for their respective roles in the circumstances of the offences. This is reflected both in the post-accident remedial measures implemented by AMDF which have been extracted earlier from the Agreed Facts, and in the personal expression of remorse by Mr Frendo, AMDF's sole director, outlined in a letter sent to WorkCover, dated 28 August 2012, as follows: ... the Defendant in his personal capacity and as Director of the corporate defendant apologised to the injured worker in person, and expressed remorse and contrition, with the injured workers mother present together with the rehabilitation provider. This occurred at the workplace during the return to work process, at the end of that process, in a meeting that arranged the end of graduated return to work and resumption of full work duties. Further, in the investigation undertaken by the company (see Mr Frendo's answer to Q254 and after that, in the statement of Insp Hughes dated 18 April 2011) Mr Frendo questioned staff including the injured worker, on several occasions. In those circumstances he further expressed contrition and regret at what had happened. 49Mr Dearing was also assisted by the defendants throughout the course of his rehabilitation following the accident. This involved a graduated return to work programme after which he was returned to full-time work under his previous classification at AMDF's premises. He remained there for some time until his resignation. 50These matters will be taken into account by the Court in mitigation of the penalties to be imposed. 51The defendants also tendered some financial records not for the purposes of invoking s 6 of the Fines Act 1996, that is, not to demonstrate an incapacity to pay a penalty, but merely to demonstrate the nature of the relationship between AMDF and Mr Frendo as its sole director and Managing Director. The Court was advised that AMDF employs some 30 staff and is wholly owned and operated by Mr Frendo. In addition, the records disclose loans made by Mr Frendo and his wife, although there was no documentary evidence that those loans were made to AMDF. The prosecution accepted, however, based on the records, that AMDF is a relatively small manufacturing operation and that Mr Frendo, "is essentially its alter ego and the person behind that company and that's a matter your Honour can have regard to in terms of penalty". 52The Court accepts that Mr Frendo loaned an amount of $115,000 to AMDF, "as an advance to pay creditors ..., to obtain discounts, while awaiting payments from debtors. This information appears in a letter tendered into evidence by the defendants without objection by the prosecution. The Court also accepts that AMDF is a relatively small operation wholly run and operated by Mr Frendo, that is, effectively a "one man" company. However, the size and extent of the operations of a corporate defendant has little or no bearing on the seriousness of the offence with which the corporate defendant has been charged. Otherwise, the material tendered demonstrates that the culpability of each defendant is the same. It has not been submitted that the defendants lack the financial capacity to pay fines which are commensurate with the objective seriousness of the offences, although mitigated by the subjective factors which have been advanced in their favour.

Orders 53In IRC 1908 of 2011, the Court makes the following orders: (1) Advanced Metal Door Frames Pty Ltd (AMDF) is convicted of the offence and fined $90,000 with a moiety to the prosecutor. (2) AMDF is to pay the reasonable costs and disbursements of the prosecutor under s 257B of the Criminal Procedure Act 1986 in a sum as agreed or as assessed. 54In IRC 1909 of 2011, the Court makes the following orders: (1) Terrence Michael Frendo (Mr Frendo) is convicted of the offence and fined $9,000 with a moiety to the prosecutor. (2) Mr Frendo is to pay the reasonable costs and disbursements of the prosecutor under s 257B of the Criminal Procedure Act 1986 in a sum as agreed or as assessed.

Amendments 05 February 2013 - The word "Terence" amended to now read as "Terrence" Amended paragraphs: Coversheet/Parties: Coversheet/Decision: P1, P54 13 February 2013 - Add reported citation: (2008) 172 IR 210 Amended paragraphs: Cases Cited; [42] 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. Decision last updated: 13 February 2013

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