Inspector Jelley v Dupond Industries Pty Ltd & Ors

CATCHWORDS: Occupational health and safety - Prosecution under s 8(1) and s 26(1) of the Occupational Health & Safety Act 2000 - Manufacturing industry - Failure to properly guard machine - Fatality - Foreseeability - Culpability - General and specific deterrence - Plea of guilty - Offence proven - Penalties imposed

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Factories Shops and Industries Act 1962 Occupational Health & Safety Act 1983 Occupational Health & Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003) Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v Previtera (1997) 94 A Crim R 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

PROSECUTOR Mr R Reitano of counsel Solicitor: Mr W Steenson WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS Mr B D Hodgkinson SC Solicitor: Mr A Salmon Fisher Cartwright Berriman

INSPECTOR CRISPIAN JELLEY v DUPOND INDUSTRIES PTY LTD

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

Prosecution under s 26 (1) and s 8(1) of the Occupational Health & Safety Act 2000

Prosecution under s 26 (1) and s 8(1) of the Occupational Health & Safety Act 2000

Prosecution under s 26 (1) and s 8(1) of the Occupational Health & Safety Act 2000

1 Dupond Industries Pty Ltd ("Dupond"), the corporate defendant is a pallet storage and repair business located at 7-9 Daniel Street, Wetherill Park, New South Wales. The business undertakes the painting, drying, stencilling, stacking and unloading of pallets, which are moved throughout the factory via a conveyor system. 2 Mr Gavin Garland, who was 37 years of age, was an employee of Dupond. At about 6.20 am on 3 July 2006, Mr Garland was operating the plant when he was found by another employee in an unconscious state, trapped by his chest between a stack of 20 pallets that had moved along the feed conveyor to enter the de-stacking area and the front entry side guide plate of the de-stacker. It is unclear whether the incident occurred when Mr Garland was clearing a blockage, or removing a steel bar from under the bottom pallet so that the pallet would release and continue. 3 As a result of the injuries sustained by Mr Garland, he died on 6 July 2006. 4 Stephen Norman Dupond and Graham Allan Dupond are directors of Dupond. Graham Craig Dupond was the manager of Dupond at the time of the incident ("the personal defendants"). 5 The corporate defendant was charged with an offence under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). This section provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work.

6 The offence with which the corporate defendant was charged was that on 3 July 2006, as an employer, it failed to ensure the health, safety and welfare at work of all employees, and in particular, Gavin Garland. The particulars of the charge were: (a) The defendant was, at all material times, an employer; (b) The defendant failed to ensure that all of the dangerous parts of plant at the premises comprising the Pallet Paint Line including the De-stacker which was used by its employees was adequately guarded or fenced or had other appropriate controls in place so as to prevent employees coming into contact with those dangerous parts; (c) The defendant failed to ensure that there was an appropriate procedure in place for the cleaning of blockages or 'jams' on the said plant that did not require employees to place themselves in the dangerous parts of the said plant; (d) The defendant failed to ensure that employees working on the said plant were properly trained, instructed and supervised; (e) By reason of the defendant's omissions, its employees were at risk of being injured (including fatally injured) whilst they were performing work for the defendant. 7 Each of the personal defendants were taken to have contravened, by virtue of s 26(1) of the Act, s 8(1) in respect of the corporation's failure to ensure the health safety and welfare at work of its employees, and in particular, Mr Garland. 8 Each of the defendants pleaded guilty to the charges. 9 Mr R Reitano of counsel, who appeared for the prosecutor, tendered the following evidence in the sentencing proceedings: 1. An agreed statement of facts in respect of the four prosecutions. 2. Inspector Crispian Jelley's statement in respect of the incident dated 26 September 2006. 3. Inspector Wayne James' statement in respect of incident dated 24 July 2006. 4. A factual inspection report by Inspector Jelley dated 13 July 2006. 5. 61 colour photographs taken by Inspector Jelley on 3, 4, 7, 26 July 2006, 24 August 2006; 11 October 2006 and 26 October 2006, depicting the various sections of the factory, the de-stacking machine, the stacker pallets on the feed conveyor with askew pallets, the stop start and reverse buttons, changes to the de-stacker with new mesh installed and warning stickers, and perimeter fencing installed around the de-stacking machine after the incident. 7. An extract from the Australian Standard AS1755-2000 (Conveyors - Safety Requirements). 8. Prior conviction reports in respect of each of the defendants which showed no prior convictions. 10 The prosecutor also provided to the Court victim impact statements of Mrs Kerry Tutton, Mr Garland's sister and Mrs Valerie Garland, Mr Garland's mother. 11 The agreed statement of facts, excluding formal parts, stated:

2. The first defendant is a company. Its registered office is situated at Dormers, Level 1, 1049 Victoria Road, West Ryde, New South Wales. The first defendant's place of business is 7 - 9 Daniel Street, Wetherill Park, New South Wales ("Workplace").
3. At all relevant times Stephen Dupond (second defendant) and Graham Dupond (third defendant) were directors of Dupond Industries Pty Ltd (first defendant). Graham Craig Dupond (fourth defendant) was a manager of Dupond Industries Pty Ltd from October 2004 to date.
4. On or about September 2000, Lanza Management Pty Ltd trading as Yoogali Engineering supplied and installed the pallet painting line including the de-stacker machine ("plant") at the Workplace.
5. The plant is an automated computer controlled process line controlled by a programmable logic controller ("PLC"). The line consists of a number of sections all connected by sectional chain conveyor system. The plant is reliant in part upon a series of sensors for input. A section of the plant included the de-stacker.
6. Stacks of twenty pallets ("stack") travel along a feed conveyor towards the de-stacking machine. The stack moves into the de-stacking machine. The next stack of pallets stops at a sensor and waits for a signal that the de-stacker has been emptied of the stack.
7. When the stack is in the 'de-stacker', one pallet from the stack is "de-stacked" at a time and removed in order from bottom to top. This is achieved by a table located in the center of the de-stacker raising to a height so as the arms, otherwise known as tines, can enter the second last pallet. The table then lowers down to the moving conveyor with the bottom pallet on it. This process continues until the de-stacker is empty. Once lowered the pallet leaves the de-stacker and travels along the conveyor to the spray area were it is spray painted. From there the pallet moves along the conveyor through a drying tunnel to a stencil area where the word "Chep" is sprayed onto the pallet.
8. The pallet moves finally to a grading area where it is graded in accordance to its appearance and condition. Pallets are brought to and removed from the area adjacent to the plant by forklift.
9. The dimensions of the pallets are approximately 1165mm square and 140mm high. The pallets are comprised of a series of boards and bearers of varying lengths and widths weighing approximately 43 kilograms each.
10. On the post situated at the entry side of the de-stacker were two buttons - which can be seen in photograph 20, taken on 3 July 2006, tendered by Inspector Jelley, appearing as they did at the time of the incident. The top switch stopped and started the de-stacker and the bottom switch reversed the de-stacker conveyor.
11. At the exit of the de-stacker on the guide plate was a pneumatic lever style switch - which can be seen in photograph 21, taken on 3 July 2006, tendered by Inspector Jelley, appearing as it did at the time of the incident. The lever allowed the pneumatic table located within the destacker to be raised and lowered. The pneumatic table could only be activated once the destacker had been stopped using the stop/start button - which can be seen in photograph 20, taken on 3 July 2006, tendered by Inspector Jelley.
12. Located on the front conveyor leg near the exit side was a red mushroom style, emergency stop switch, which can be seen in photograph 21, taken on 3 July 2006, tendered by Inspector Jelley, appearing as it did at the time of the incident. This button, when pressed, stopped and isolated the conveyor part of the de-stacker.
13. On both the entry and exit side of the de-stacker were steel upright posts where yellow warning stickers were placed. The stickers contained the warnings "Do not enter" and "Pinch Point".
14. At all material times the defendant carried on business in the storage, repair and distribution of "Chep" pallets.
15. At all material times the defendant employed, amongst other people, Gavin Garland, Mervyn Bowen, Inoke Amone, Faafeiai (Charlie) Lele, Thomas Selveraj, Albert Straub, Steven Brodie and Dennis Conroy. The Incident
16. Mr Gavin Garland, a 37 year old employee of Dupond Industries, commenced work at the Workplace at 5.30am on 3 July 2006 and started operating the plant. Mr Garland had operated the plant for approximately 5 years prior to the incident. Work commenced early on the plant as the defendant in their daily operations could repair more pallets than they could paint. A forklift driver Mr Conroy also commenced work at this time. Other employees and supervisors did not usually commence work before 6.30am.
17. At approximately 6.20am Mr Garland, was operating the plant when he was found by another employee, Mr Conroy, in an unconscious state trapped by his chest between a stack of twenty pallets that had moved along the feed conveyor to enter the de-stacker and the front entry side guide plate of the de-stacker. 'The Pallet Painting Line' including the de-stacker was running at the time. Mr Conroy was working with Mr Garland at the time of the incident. Mr Conroy was operating a forklift to remove stacks of pallets from the Pallet Painting Line and load painted pallets onto trucks, and to load unpainted pallets onto the Pallet Painting Line to be painted. At the time of the Incident Mr Conroy was taking pallets to be loaded onto a truck that was in the yard and could not see Mr Garland at the time. Mr Garland died on 6 July 2006 as a result of the injuries sustained.
18. At the time of the incident, it would appear that the machine was running and Mr Garland was leaning into the de-stacking machine. It is unclear whether he was clearing a blockage or removing a steel bar from under the bottom pallet so that the pallet would release and continue. Investigation
19. On 3 July 2006 Inspector Jelley attended the site to inspect the plant as part of his investigation. He observed a stack of pallets situated on the feed conveyor, near the entry to the de-stacker was askew on the bottom pallet. The de-stacking machine still contained a number of pallets (10). The tines of the de-stacker were holding up the stack by the second bottom pallet. The bottom pallet was resting on a steel bar that was on top of the raising table, which prevented it from exiting.
20. On 3 July 2007, under the instruction of Senior Constable Cullen and Inspector Jelley, Craig and Graham Dupond, with the assistance of employees, tried a number of combinations in an attempt to have the waiting stack of pallets enter the de-stacking machine when the de-stacker still contained pallets. This included placing the waiting pallet over the top of the sensor, placing the waiting pallet half on the feed conveyor and half on the de-stacking conveyor. On each occasion on that day, the waiting pallet would not enter the de-stacking machine, the fault that may have caused the incident was unable to be replicated and there appeared to be no problems with the operation of the Pallet Painting Line.
21. On 6 July 2007, while observed by Inspector Jelley and an Electrical Engineer, Mr Lawson, Graham Dupond with the assistance of an employee, undertook a number of experiments in an attempt to replicate a fault where the pallets would attempt to enter the de-stacker even though it contained pallets. On one occasion the waiting pallet moved forward in an attempt to enter the de-stacker even though the de-stacker still contained pallets. The sequence was not recalled and was unable to again be replicated.
22. There were a number of nip points on the line, including the chains and sprockets on the conveyor and between moving items on the conveyor and fixed elements. There were nip points within the de-stacker, around the raising table and within the de-stacker shoot.
23. At all material times there was a lack of adequate guarding on the plant to prevent operators from accessing the internals of the de-stacker and associated hazards within the de-stacker or control measures to guard the nip points created by moving items on the conveyor, the pallets and the stationary points, being the side of the de-stacker.
24. The feed conveyor motor isolation switches were located next to the motors on the non working side of the line and could be accessed by walking over the walkway and around the back of the line. There was no feed conveyor motor isolation switches located on the working side of the plant.
25. There was no emergency stop switching at the de-stacking machine nor was there an emergency stop lanyard along the feed conveyor.
26. There was no master isolation switch on the outside of the control cabinet of the plant or ability to lock out. There was a master isolation switch on the inside of the control cabinet.
27. Upon receipt of the plant the defendants conducted an informal risk assessment, which led to the defendants supplying and fitting guarding on the machine at the tine arms and on the ends of the conveyor lines around the sprockets. On the de-stacker machine, attached to the horizontal posts at feed and exit sides, were a number of signs/stickers to warn of the existence of nip points and stated "do not enter" and "Pinch Point".
28. There was no guarding to prevent access to some moving parts of the destacker including an area around the horizontal posts, underneath the raising table and on either the entry or exit side. There was signage on the plant approximately 500mm from the point where Mr Garland was trapped, on a support post on the same structure of the plant.
29. The defendants did not have in place an adequate documented set of instruction for the operation of the plant. There was no documented system in place to advise employees to safely deal with jams or other mechanical difficulties experienced with the plant. Rather employees were instructed that they were not to do anything to the machine unless it was turned off prior to rectifying any problems. The defendants did have in place a verbal system of work and instructions for the safe operation of the plant.
30. There was a verbal system of work in place in which the employees had been trained. The operators were instructed that they were permitted to rectify minor operational problems with the plant. If in the event they were unable to rectify the problem (as it was not minor or they were unable to rectify it) operators were to notify either their supervisor or the fourth defendant. It was accepted practice, when pallets got caught up and would not exit the plant, for operators to give the caught up pallet a hit with a hammer to release it. The company requirement was that the machine be switched off before attempting to take steps to free the caught pallets.
31. Training took place in the form of verbal instruction and on the job experience under supervision. New or inexperienced operators were teamed to work with experienced operators. No records were kept of training provided.
32. The exact cause of why the stack that moved forward and trapped Mr Garland entered the de-stacker whilst it still contained pallets is unclear. On one previous occasion the sensors on the de-stacker appeared to fail which caused the stack on the feed conveyor to be forced into the de-stacker whilst it still contained pallets.
33. Dupond (the corporate defendant) was aware of this problem with the plant but was of the opinion that there was nothing that could be done to rectify it. 12 Mr B D Hodgkinson SC, who appeared for the defendants, read affidavits of Graham Craig Dupond, manager of the corporate defendant, Graham Allan Dupond, a director of the corporate defendant and Stephen Norman Dupond, also a director of the corporate defendant. The personal defendants were not required for cross-examination. 13 Graham Craig Dupond set out the history of the corporate defendant that was established in 1987. It is a family run company. Dupond employs approximately 40 employees, of which 30 are located at the workplace and 10 are employed as drivers off site. Mr G C Dupond is the manager of the corporate defendant, having commenced employment as a trainee supervisor in 1994. 14 Mr G C Dupond set out his work experience, qualifications and training, which included attending a five day course run by Employers' First on Applied Human Resource Management. The course had an OH&S component titled "Occupational Health and Safety for Line Managers and Supervisors" and was made up of five modules which covered, amongst other things, managing OH&S in the workplace; OH&S policies, programs and training; auditing and management of OH&S in the workplace; obligations under the OH&S Act and supervisor's role in OH&S. 15 On 7 and 8 March 2007, Mr G C Dupond completed a course on developing and implementing OH&S management systems, again run by Employers' First. 16 In or about July 2000 the corporate defendant commissioned Lanza Management Pty Ltd t/as Yoogali Engineering to supply and install a pallet paint machine which consisted of a pallet painting line and a de-stacking machine in accordance with safety requirements and Australian Standards. After the supply of the machine, Mr G C Dupond considered that the tines which make up part of the de-stacker posed a risk to employees. As a consequence, the corporate defendant improved the guarding on the machine by supplying and fitting guards around the de-stacker and stackers. Guards were also installed around nip points at the end of the conveyors as Yoogali did not fit such guards. The machine also had stop buttons in place including: 1 a red mushroom style, emergency stop switch on the front conveyor leg near the exit side of the de-stacker, which stopped and isolated the de-stacker conveyor; 2 a start/stop button located on a post situation at the entry side of the de-stacker; 3 a stop/start button at the operator's station; 4 a red mushroom style emergency stop switch opposite the workstation on the non-working side of the conveyor; and 5 emergency stop lanyards along both sides of the Machine where the spray stencils and drying tunnels are located. 17 Mr G C Dupond explained his understanding of the incident. He stated that at the time of the incident, Mr Garland was a paint machine operator. Stacks of 20 pallets were loaded on a conveyor on the de-stacking machine by a forklift operator. The pallets then move along the conveyor to a pallet de-stacker which de-stacks the pallets one by one. The pallets were then spray painted and re-stacked at the end of the conveyor. 18 Mr Garland's duties included monitoring the operation of the machine, periodically cleaning the spray guns where necessary and cleaning the machine at the end of a shift. The majority of the paint machine operator's time is spent monitoring the pallet quality as they travel past the operator's station and removing the pallets from the line to be repaired if they did not meet quality standards. There were no formal qualifications or licenses required for the operation of the machine. 19 At 6.10 am on 3 July 2006, Mr G C Dupond was advised by a forklift driver that Mr Garland had been involved in an accident. He immediately ran to the machine where he found Mr Garland between two stacks of pallets. The machine was switched off and after assessing how Mr Garland was positioned, Mr G C Dupond directed the stacks of pallets be removed from the machine with a forklift. Mr Dupond was assisted by Mr Masaga, a pallet repairer, in lowering Mr Garland to the ground. He contacted an ambulance and commenced CPR on Mr Garland which he continued until the ambulance arrived. 20 After Mr Garland had been taken to hospital, Mr G C Dupond spoke to all employees at the workplace, offering counselling services to them and gave permission for the employees to leave work without loss of pay. He visited Mr Garland and his family in hospital on 3 and 4 July 2006 and spoke to the nursing staff at Liverpool Hospital on 5 July 2006. Employees were kept informed of Mr Garland's condition, Dupond's investigation of the incident and also WorkCover's investigation. The factory was closed on the day of Mr Garland's funeral with employees receiving their normal wages. Mr G C Dupond attended the funeral and the corporate defendant contributed $4,450 to the costs of the funeral. 21 Mr Garland had been employed with the corporate defendant since 10 November 1997. For the past five years, he had been operating the machine five days a week and most Saturday mornings. 22 Mr G C Dupond set out in detail the various occupational health and safety initiatives that it had in place prior to the incident. He said Dupond's workforce has a high level of illiteracy and in order to ensure that employees who have difficulty reading, training was delivered orally and demonstrated to employees. The corporate defendant had in place documented systems in relation to consultation arrangements, risk management and hazard identification, copies of which were annexed to the affidavit. An extensive number of safety policies and procedures were also in place. These included a pedestrian safety policy, forklift start up procedure, nail gun safety policy, general safety policy and machine operation policy. Copies of these policies were annexed to the affidavit. Personal protective equipment was also provided to employees prior to the incident. This included high visibility uniforms and vests, safety boots, hearing protection, eye protection, gloves and sun block lotion. 23 On commencement of employment, all employees were provided with induction training relating to safe use of equipment and relevant systems of work. Mr G C Dupond personally inducted all new employees to the workplace and trained the new employees on their work processes to ensure they would learn and follow safe work methods. The training provided to new employees was not recorded prior to the incident. A copy of the corporate defendant's induction program in existence prior to the incident was annexed to the affidavit. Following induction, new employees were teamed with an experienced machine operator to perform their duties. This continued until Dupond was satisfied that the employees were sufficiently experienced to operate the machine and to perform their duties by themselves, under supervision of the supervisor rostered on to their shift. On the job training for all employees in relation to safe use of equipment and relevant systems of work was also provided. Employees were encouraged to communicate with Mr G C Dupond and the directors in respect of OH&S safety issues. Mr Dupond was present on the floor of the workplace on a daily basis. Mr Dupond said that the management of the corporate defendant had weekly or fortnightly informal discussions with employees regarding safety in the workplace and hazards. Safety issues were raised by employees at their meetings from time to time. Discussions took place with employees as a group, or with individual employees. If a safety issue had been identified by an employee or by the corporate defendant in relation to the way the employee is performing his duties it was discussed. 24 In January 2005, a meeting was held with all employees to discuss OH&S consultation arrangements. The corporate defendant proposed that employees elect two representatives to liaise with management and provide an anonymous channel between management and the employees, as an added safeguard to encourage free communication. 25 Immediately after the incident, the following steps were taken by the corporate defendant: 1 The corporate defendant immediately shut down the Machine; 2 on 4 July 2006, the corporate defendant made arrangements for ICE Men Pty Ltd, a computer control company, to check the Machine's computer systems to ensure there were no problems with those systems and to report to Dupond on improvements that were required to the Machine. The information obtained from ICE Men Pty Ltd's website relating to their services was annexed to Mr Dupond's affidavit; 3 on 6 July 2006, Dupond arranged for Guarding Specialist Pty Ltd, who are qualified and experienced guarding specialists, to inspect and review the Machine to determine whether it was adequately guarded and provide advice if it was not. A brochure setting out Guarding Specialist Pty Ltd's services was also annexed to Mr Dupond's affidavit; 4 on 10 July 2006, a representative of Guarding Specialist Pty Ltd attended the Workplace to undertake a number of inspections; 5 In July 2006, the corporate defendant engaged Intervention Safety Managemetn Pty Ltd to conduct a risk assessment and hazard identification on the Machine and provide advice on improvements that could be made to guarding and safety of the machine; and 6 The corporate defendant has carried out the improvements on the Machine as suggested by ICE Men Pty Ltd, Intervention Safety Management Pty Ltd and Guarding Specialist Pty Ltd. 26 The corporate defendant fully complied with WorkCover improvement notices which involved developing, implementing and maintaining a safe system of work to ensure that plant and equipment used at work was adequately maintained in a safe condition, including the pallet painting line and the pallet de-stacking machine by ensuring adequate maintenance, including ensuring that the proximity sensor switches were adequately secured and switches and control buttons adequately sign posted/labelled to identify their functions. Steps were also taken to ensure adequate emergency stop controls were fitted, adequate electrical isolation installed and dangerous parts of the machine adequately guarded, including nip points and access to moving parts of the raising table. 27 The corporate defendant checked and improved (where necessary) the guarding and other safety devices on all machines at the workplace following the incident. Supervision of employees was also increased. In 2003, the corporate defendant set productivity targets for pallet repairs to be met by employees each day. After employees reach the targets, they are not required to complete further work that day. Mr Dupond said that the targets were very reasonable and had remained the same since they were introduced. Employees comfortably meet the targets each day and it is not intended to increase the targets. 28 Mr Dupond said that the corporate defendant had spent approximately $51,000 improving guarding of machines at the workplace, including in respect of the machine involved in the incident. ICE Men Pty Ltd, a company which undertook improvements to the machine's computer system and controls were paid $40,599.50 for their work. Copies of invoices relating to the upgrade in respect of safety were attached to the affidavit. Risk assessment procedures have been improved through the introduction of a risk management program ("RMP"). A copy of this program was annexed to the affidavit. 29 Following the incident, guards and safety devices were placed on the machine. This included installing additional sensors on the de-stacker at the exit side; new control switching was installed at the operator's station and at the de-stacker; a safety hinge switch was installed; further guarding installed around nip points and perimeter fencing installed around the feed conveyor, end of line, operator's station, re-stacking area, painting area, pallet painting line and de-stacking machine. Access is only permitted to some areas by removing a key from the control panel which isolates the machine and using it to unlock the gate. All other access gates are electronically interlocked to isolate the machine when opened. Mesh was installed at the rear of the de-stacker and warning stickers placed on the de-stacker and around the perimeter fence. 30 A number of new documented occupational health and safety systems were introduced, which were annexed to the affidavit. These included a fatigue management program, safe work procedure for each of the machines operating at the workplace and forklifts, gas bottle decanting and safe loading and tipping techniques. 31 The new policies were distributed to employees who were trained in the content and operation of the policies in September 2006. All new employees receive the OH&S policies during induction, which is when all policies are explained and employees trained in safe work procedures. Mr Dupond now conducts meetings at least once a month with employees in either small groups, the entire workforce, or one on one to discuss OH&S issues. Mr Dupond has also updated his OH&S knowledge by attending a further OH&S course. In June 2007, drivers were provided with refresher training, safe work practices and tipping techniques. The training was conducted by All Business Learning End Solutions Pty Ltd. It included a Roads and Traffic Authority Fatigue Management Training course. Copies of the training program were annexed to the affidavit. 32 Mr Dupond expressed the corporate defendant's and his genuine sorrow that the incident took place. He stated that the corporate defendant offered counselling to all its employees and that he spoke on a one on one basis for three to six months after the incident with employees to see how they were coping and to ascertain whether they required assistance. In the first two weeks after the incident, Mr Dupond spoke to employees approximately three times a week. He said the incident had affected him both professionally and personally. Mr Dupond had worked closely with Mr Garland over a period of eight years and it was traumatic for him to see Mr Garland injured. Performing CPR and mouth to mouth resuscitation on a close colleague was one of the hardest acts he had to do. He was determined not to give up and he was devastated to find that his attempts to revive Mr Garland had not been successful. Mr Dupond said he had lost enthusiasm for his professional career, found it more difficult to make decisions at work and that he felt less confident following the incident. He said his wife has also suffered through his lack of confidence and impatience. His sleeping patterns have also been affected. He said his wife has completed a bachelor of social science and has helped him through the difficult periods, but he will never be the same. 33 Mr Dupond referred to the corporate defendant's and his co-operation with WorkCover. He said neither the corporate defendant or himself had any prior convictions under the occupational health and safety legislation or any other legislation. 34 Mr Dupond stated that the corporate defendant fosters a close knit factory team. All of its employees are long term employees who have been employed on average for eight years. The corporate defendant has accommodated workers with limited literacy and education, which has further enhanced the team approach. The corporate defendant regularly donates to Edensor Park Junior Rugby League Football Club, Cabramatta/Fairfield Police and Citizen's Boys Club, Combined Rotary Club of Ryde and the Salvation Army and the Rural Bush Fire Brigade. Mr Dupond also gives his time to the Oaks Rugby League Football Club. He has completed a first aid officer's certificate as any team that plays football must have a first aid officer. He assists the under six team. 35 The corporate defendant undertook a complete audit of its OH&S system, policies and procedures in July 2006 including seeking independent advice on guarding and reviewing what OH&S systems and procedures it should have in place. Mr Dupond continually works on the corporate defendant's OH&S system to improve safety in the workplace and aims to complete a full internal audit of the system every 12 months. As an additional initiative and in order to have their systems externally, the corporate defendant arranged for the Brief Group to conduct an audit of the corporate defendant's management system on 28 November 2005. A brochure outlining the Brief Group's services was attached to the affidavit. 36 Mr Dupond, in dealing with the corporate defendant's finances, said that it was a small family run business which operates in overdraft and has recently increased the size of that overdraft. It has a number of loans with the Westpac Bank relating to hire purchase of a number of vehicles. The total amount outstanding in respect of the hire purchase agreement is $537,728. Attached to the affidavit were the hire purchase agreements with Westpac Bank showing the total amounts borrowed. All of the corporate defendant's loans are personally guaranteed by Stephen and Graham Dupond. 37 Mr G C Dupond has four dependents, a wife and three young children, aged six, four and one. He does not have a financial interest in the corporate defendant and receives a gross salary of $75,088 per annum, plus any overtime that he works. A copy of his group certificate for the financial year ending 2007 was annexed to his affidavit. 38 Graham Allan Dupond, who is 57 years of age, has been a director of the corporate defendant since December 1987. Mr G A Dupond, sought to rely on the matters contained in the affidavit of Mr G C Dupond. Mr G A Dupond set out the history of the corporate defendant and his work experience, qualifications and training. He was not at the workplace at the time of the incident involving Mr Garland. He arrived at approximately 7.15 am on 3 July 2006. He visited the hospital on 4 July 2006, however, he was not permitted to see Mr Garland. He did speak to his mother and sister. He attended Mr Garland's funeral, along with the other directors and Mr G C Dupond. Mr G A Dupond said that he relied upon Employers' First to provide relevant occupational health and safety information to him. He has updated his occupational health and safety knowledge by reading monthly publications forwarded by Employers' First. He observes employees at work to assess if they have been properly trained and are able to perform their duties and he speaks to them regularly. 39 Mr G A Dupond expressed his genuine sorrow in respect of the incident and said that he was shocked and could not believe that the incident had happened. He said that he intends to continually strive to improve occupational health and safety. Mr G A Dupond said he had fully co-operated with WorkCover during its investigations and he had no prior convictions under the Act or any other legislation. He regularly donates money to the Rural Fire Services, Care Flight, Arthritic Foundation and North Shore Heart Research Foundation. From 1980 to 1988 he was president of the Badgery's Creek Junior Rugby League Football Club and assisted his wife in her role and canteen manager for the club. He and his wife were foundation members and volunteered a lot of their time and equipment in the construction of the football field, as well as ongoing duties as the president of the club. 40 Mr G A Dupond said that the corporate defendant is a small family run business and that any fine imposed on the corporate defendant will directly impact on himself and his family and his brother, Stephen Dupond. He observed all of the corporate defendant's loans were guaranteed personally by himself and Stephen Dupond. Mr G A Dupond has a dependent wife, having raised two children, who are now adults. 41 Mr Stephen Norman Dupond has been a director of the corporate defendant since December 1987. He is aged 53 years. Mr Stephen Dupond sought to rely on the affidavit of Mr G C Dupond. He set out his work experience and stated that he left school at 16 years of age, working with his father in an earthmoving business before building up a transport business which he sold to get into partnership with his brother in the corporate defendant's business. Mr Stephen Dupond was not at the workplace at the time of the incident. He attended Mr Garland's funeral. He said that he has ensured that employees have updated their training, including Mr G C Dupond, who attended a course on developing and implementing the OH&S management system. 42 Mr Stephen Dupond expressed his genuine sorrow that workplace was unsafe and that the incident occurred. He said that he intends to continually strive to improve occupational health and safety to ensure that an incident like this does not occur again. 43 Mr Stephen Dupond has no prior convictions under the Act or any other legislation and said he fully co-operated with WorkCover in its investigation into the incident. Mr Stephen Dupond donates approximately $30 every three months to the Rural Bush Fire Service and also small amounts to the Salvation Army on a regular basis. He is involved in his local community by helping to train the Edensor Park Junior Rugby League team, which he has done for the past eight years. 44 In dealing with the corporate defendant's finances, he said that it was a small family business and any fine imposed would direct impact upon himself and his family and his brother, Mr G A Dupond. Mr Stephen Dupond has three dependents, a wife and two children. Relevant Principles 45 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above 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." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t 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" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 46 I commence the consideration of penalty by having regard to the principles stated above and examining the nature and quality of the offence. The risk to health and safety of employees if machines are not properly guarded is obvious. The Australian Standard AS 1755-2000 for conveyors specifies the requirements for guarding at s 3.1 as follows: Guards shall be designed and provided to prevent access to danger zones unless the danger zone is guarded by location or position. Guards shall be included in the design of the conveyor. All guards shall be secured in position so that they cannot be removed without use of tools unless an interlocking device is provided to automatically stop the conveyor in the event of the removal of the guard. 47 The Standard also deals with emergency stop controls and marking of control devices with signs or labels, in writing, clearly indicating the purpose of the control. 48 The risk to safety arose because Mr Garland had access to a potentially dangerous area of the machine. Although it is not known precisely how Mr Garland became pinned between the pallets, the relevant question to be asked is why he was exposed to such a risk, particularly where all of his body was caught or pinned between pallets moving along a conveyor. The statement of facts (at 32) record that on one previous occasion, the sensors on the de-stacker appeared to fail, which caused the stack on the feed conveyor to be forced into the de-stacker, whilst it still contained pallets. The corporate defendant was aware of this problem with the plant, but was of the opinion that there was nothing that could be done to rectify it. Although the corporate defendant, under the instruction of Senior Constable Cullen and Inspector Jelley on 3 July 2007, tried to replicate the fault by placing the waiting pallet over the top of the sensor, or placing the waiting pallet half on the feed conveyor and half on the de-stacking conveyor, the waiting pallet would not enter the de-stacking machine. The fault that may have caused the incident was unable to be replicated and there appeared to be no problems with the operation of the pallet painting line. Similar attempts to replicate the fault were undertaken on 6 July 2007. On this day, on one occasion, the waiting pallet moved forward in an attempt to enter the de-stacker, even though the de-stacker still contained pallets. 49 The failure here was to ensure that the dangerous parts of the plant comprising the Pallet Paint Line, was adequately guarded or fenced, or had other appropriate controls in place so as to prevent employees coming into contact with those dangerous parts. 50 Although the corporate defendant had a combination of documented and verbal systems of work in place prior to the incident, the majority of training, including safe ways of doing particular jobs, was delivered verbally and demonstrated to employees. The disadvantage with limited documented occupational health and safety systems is that there may not be a consistent approach adopted with oral training and instruction. After the incident, a number of new documented systems were introduced that will enable employees to be consistently informed of the requirements. There was also a lack of clear signs or labels indicating the purpose of the control button on the machine. 51 At the time of the incident, it would appear that the machine was running and Mr Garland was leaning into the de-stacking machine. Assuming this to be the case, it is firstly Mr Garland's proximity to the machine and secondly, his leaning into the machine, either to clear a blockage or remove a steel bar that gave rise to the risk to health and safety. In such circumstances, the defendants failed to have in place appropriate procedures for the clearing of blockages so that employees were not required to place themselves at risk by being in the close proximity of dangerous parts of the plant. 52 There was no emergency stop switching at the de-stacking machine, nor was there an emergency stop lanyard along the feed conveyor. 53 Clearly, if appropriate adequate guarding was in place and the employees had been properly instructed and trained, the risk to health and safety would have been avoided. 54 Although the corporate defendant had verbal systems of work in place, there was no documented system in place to advise employees to safely deal with jams or other mechanical difficulties experienced with the plant. Employees were instructed that they were not to do anything to the machine unless it was turned off. However, it was accepted practice that if and when pallets got caught and would not exit, the plant operators would give the caught up pallet a hit with a hammer to release it. The corporate defendant's requirement was that the machine be switched off before attempting to take such steps. 55 Although the corporate defendant had a verbal system of work in place in which the employees had been trained, there was a significant breakdown in the system. 56 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Although there was a verbal system of work in place, there was a failure to adhere to this system and there was also a lack of guarding which exposed Mr Garland to risk. Following the incident, the corporate defendant spent approximately $51,000 improving guarding of the machines at the workplace; adequately securing sensors and ensuring adequate labels for controls were in place. These remedial steps were simple and inexpensive to implement. 57 Whilst the consequences of an accident will not, of itself, dictate the seriousness of the offence, the occurrence of serious injury or death, as has occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32] and the cases referred to therein. See also Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337. 58 It is necessary to assess the degree of culpability for the breach of occupational health and safety that can properly be attributed to the acts or omissions of the defendants in order to determine the gravity of the offence to which the defendants have pleaded guilty. The failures here are to have proper and adequate guarding of a machine.

59 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was readily foreseeable, as the corporate defendant was aware, that access could be gained to the machines. 60 The seriousness of the risk, its foreseeability and the ease of removing that risk, renders this a serious offence. There is also the particular aggravating factor of the death of Mr Garland: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 61 In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral Aluminium Ltd v WorkCover Authority of New South Wales at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. I consider it is appropriate to draw attention once again for the need for employers operating dangerous machines to ensure that such machines are adequately guarded. It is therefore appropriate that I give appropriate weight to the need for general deterrence in determining penalty. 62 In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as it the propensity for the defendants to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendants from further offending against the Act and/or for the purposes of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendants have unblemished records in a dangerous industry and have taken appropriate measures to avoid a recurrence of the offence. The corporate defendant, as described in the evidence of Mr C G Dupond has introduced a number of significant initiatives to avoid an incident similar to this occurring in future. I include an element in the penalty for specific deterrence. 63 Incidents such as this should not be happening. The very reason that social legislation such as the Occupational Health & Safety Act 2000, and its predecessor, the Occupational Health & Safety Act 1983, not to mention the Factories Shops and Industries Act 1962 were introduced was to eliminate risks of accessing dangerous machines. A man has died needlessly. 64 The relative subjective considerations include pleas of guilty at the first available opportunity. I propose to allow discounts of 25 per cent for the pleas of guilty to the amended charges in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 65 I take into account that the defendants co-operated with the WorkCover Authority in its investigations of the incident, the corporate defendant's good corporate citizenship and the defendants' obvious strong commitment to occupational health and safety. I also take into account the defendant's genuine remorse and that the corporate defendant is a relatively small family business. 66 Pursuant to s 30 of the Crimes (Sentencing Procedure) Act, the Court received victim impact statements from Mrs Valerie Garland, who described receiving a phone call at 7.15 am and being advised that her son had been admitted to Liverpool Hospital as a result of a work-related accident. Mrs Garland described her son's injuries as horrific and that he never regained consciousness. 67 Mrs Garland said that on 5 July 2006, the family was advised that it would be in Mr Garland's best interest to turn off the ventilator because he had suffered irreversible brain damage due to being deprived of oxygen and would spend the rest of his life in a vegetated state, relying on a ventilator to breathe. Mrs Garland spoke of a loving and caring son, who never married and lived at home and was always helpful to her and his father. As they aged, they were becoming increasingly more reliant on Mr Garland to do things for them around the house, including general maintenance, which her husband could no longer do, due to his health. Mr Garland also helped with shopping and driving his parents to appointments and outings. 68 Mrs Garland said that her health and also her husband's health had deteriorated due to the stress of having to deal with their son's death. Both have serious ongoing health problems. Mrs Garland described her son as the "Pied Piper" of the family, who always made time to entertain his nieces and nephews and to watch football matches, particularly the Parramatta Eels. She said his death has completely devastated all his family: mother, father, sister, two brothers, their spouses and eight nieces and nephews from which they will never ever recover. 69 Mrs Kerry Tutton is Mr Garland's sister. Mrs Tutton told of receiving a phone call from her mother on 3 July 2006 advising that Gavin had been taken to hospital after an incident at work. Upon arriving at the hospital, and being a trained nurse, Mrs Tutton was shocked at seeing Mr Garland. She described the extent of his injuries and said she knew the chances of him surviving were next to zero and that if he did, he would not have the quality of life he had previously enjoyed. 70 Mrs Tutton stated that the next two and a half days were extremely stressful for her and her husband and daughter, as they waited for an improvement in Mr Garland's condition. She was upset to see the grief and stress her parents endured over these days, desperately clinging to the hope of a miracle which would never come. 71 During this time, Mrs Tutton said she was trying to get some answers as to how this tragedy happened and felt a multitude of emotions from despair to anger. She could not get out of her head Gavin being pinned in the machine, fighting for breath and survival, with no-one being there to help him. It is something that still haunts her and that she will carry for the rest of her life. She is still having problems dealing with the manner of his death, including experiencing difficulty in sleeping. Mrs Tutton cannot think of Mr Garland without crying and is currently being treated for major depression. She spoke of her brother as being a great support and comfort to her, and her two brothers, as well as assisting her parents. 72 She described her brother as "a good soul who deserved to live and deserved to go to work and come home safely." She said that the family were all struggling to deal with the reasons why this terrible tragedy had befallen them. 73 As I observed in Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 at [138]: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life.

74 I respectfully agree with the reasoning of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 84 - 85 where his Honour said: A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so ... In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. 75 Similar observations were made by Members of this Court in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43] and Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003). 76 I have considered the statements from Mrs Valerie Garland and Mrs Kerry Tutton and formed the view that it would not alter the penalty, which I think is otherwise appropriate in this matter in all the circumstances of the case. 77 Further, it is appropriate that this Court extends its deepest sympathy to the Garland family for their loss. 78 The maximum penalty in this case, given that the corporate defendant has no prior convictions is $550,000. The maximum penalty for the personal defendants, given that they have no prior convictions is $55,000. 79 I consider an appropriate penalty for the corporate defendant, taking into account all of the circumstances set out in these reasons is $200,000. 80 In respect of the personal defendant, Graham Craig Dupond, Mr Hodgkinson submitted that I give consideration to the provisions of s 10 of the Crimes (Sentencing Procedure) Act. I have carefully taken into account Mr G C Dupond's circumstances, in particular, that he provided CPR to Mr Garland and the impact that his death had on him. However, I am not disposed to exercise my discretion because in my view Mr Dupond does not have the requisite exceptional circumstances required for the making of such an order: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [21], [24] - [26]; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [57] - [58]. In my view, the culpability of each of the personal defendants is similar. 81 Taking into account the principles of parity in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 340-341, I consider an appropriate penalty for each of the personal defendants is $25,000. 82 I should observe that the penalties would have been greater, but for the matters raised by Mr G C Dupond, particularly that the corporate defendant is a relatively small family company and the steps that it took immediately after the accident. 83 The prosecutor sought costs and a moiety of the fines, which I propose to order. It was agreed that a costs order against the corporate defendant would be sufficient to cover the costs of the personal defendants. ORDERS 84 The Court makes the following orders: In matter No IRC 9 of 2007: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $200,000 with a moiety to the prosecutor. 4. The corporate defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. In matter No IRC 10 of 2007: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $25,000 with a moiety to the prosecutor. In matter No IRC 11 of 2007: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $25,000 with a moiety to the prosecutor. In matter No IRC 12 of 2007: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $25,000 with a moiety to the prosecutor.

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