[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.