40 Mr Meehan of counsel for the defendants contended there was evidence of an inherently unsafe work practice whereby when a pallet was caught in the de-stacker an employee, having shut off the machine, would lean into the de-stacker and hammer the pallets to try and adjust them. Mr Meehan contended that the supplier could not have reasonably foreseen such a practice. However, as Bauer J said in WorkCover v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257, the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. Further, even if Mr Garland was engaging in such a practice when the tragedy occurred it was not necessary for the defendants to have foreseen the precise circumstances in which the risk arose in order to ensure the plant was adequately guarded.
41 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources v Kembla Coal & Coke (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited (unreported, Matter No CT 1025 of 1993, 18 March 1994); and, Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. Following the incident on 3 July 2006, Dupond took a number of steps to improve the safety of the plant including:
(i) the installation of perimeter fencing around the plant to prevent employees accessing the dangerous parts of the line, including the installation of interlocked gates where access is required;
(ii) upgrading the electric and operation system of the plant through the installation of:
(a) control panels that provide operators with more functionality to operate the stackers and de-stacker;
(b) a fortress style, captive key, system at the control panels;
Emergency stop (e-stop) switches at the control panels;
(c) two additional sensors in the de-stacker for the detection of pallets;
(d) E-stop lanyards along the feed conveyor, on the operator's side of the conveyor; and
(e) a lockable main isolation switch at the main control panel to isolate the whole line.
42 Noting that lanyards had been supplied, none of the other machinery or equipment used by Dupond to improve safety of the plant would have been difficult for the defendants to supply in the first place.
43 General and specific deterrence are further considerations to be taken into account: Capral Aluminium at [71] to [80]. With respect to general deterrence, a significant number of breaches of the Occupational Health and Safety Act arise from the failure to guard or adequately guard machinery. It is appropriate for the Court to fix a penalty that has regard for the obvious and important need for general deterrence.
44 In relation to specific deterrence, the evidence was that the corporate defendant of which the personal defendant was a director and had exercised day-to-day control over its operations, was no longer an operational company and had not been since the incident on 3 July 2006. I accept this evidence and I do not propose to make provision for specific deterrence. I will, however, provide for a small element of specific deterrence in the penalty to be applied to the personal defendant because there was no evidence that he would not re-engage in some form of enterprise involving the supply of plant.
45 The Court is required to give careful attention to maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v The Queen (2005) 228 CLR 357 at [31]. The defendants have no previous convictions under the relevant legislation. Accordingly, the maximum penalty in the case of the corporate defendant is $550,000 and for the personal defendant it is $55,000: Section 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act.
46 The defendants have pleaded guilty to the respective charges although the pleas were entered quite late because of negotiations over a number of other charges that had been laid against the defendants but were later withdrawn. Further, I note that each of the pleas of guilty were in relation to an unamended charge against each of the defendants. Nevertheless, the pleas have a utilitarian value because time and expense have been saved and inconvenience avoided by matters not having to proceed to trial. I propose to allow a discount of 15 per cent on the penalties.
47 Mr Meehan submitted that the Court would give consideration to applying s 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the personal defendant, Mr Lanza. It was submitted that Mr Lanza, as a director of the corporate defendant was, in effect, at arms length from the events that occurred giving rise to the charges and that the prosecutor did not bring evidence as to Mr Lanza's personal culpability.
48 On the contrary, Mr Lanza exercised day-to-day control of the corporate defendant. He supervised Mr Moran in designing the plant that was supplied to Dupond. He inspected the plant after it was supplied thereby giving him the opportunity of detecting any deficiencies in the safety requirements for the plant once it had been installed. Mr Lanza also failed to supply to Dupond an operation manual in respect of the plant.
49 As it was observed by the Full Bench in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45], s 10 will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act. Where a defendant deemed by virtue of s 50 of the Act to have contravened a general duties provision of the Act is personally culpable, where the risk to health and safety was reasonably foreseeable, where the breach had potentially very serious consequences for the health and safety of employees, where the risk was easily preventable or steps were available but not taken to mitigate the risk and where the subjective factors do not outweigh the objective considerations, there is no scope, in my opinion, to apply s 10. That is the case here.
50 Mr Meehan submitted that the corporate defendant was impecunious and Mr Lanza, who was 63 years old, earned only a very modest income from part time employment, the amount being $400.00 per week. Reference was made to the affidavits of Mr Lyons, which contained reports on the financial position of both defendants. It was Mr Lyons' evidence that the corporate defendant was not in a financial position to pay any amount of fine without placing the company into an insolvent financial position. Mr Lyons stated that the corporate defendant had no assets.
51 In relation to the personal defendant it was Mr Lyons' evidence that Mr Lanza was not in a position to pay any fine without seeking financial assistance by borrowing funds from his bank under a mortgage the bank holds. Any repayment of borrowings, Mr Lyons said, would put significant financial pressure on Mr Lanza's day-to-day living standard.
52 The treatment of the financial situation of a defendant was addressed in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [82]-[84]:
[82] …It emerges from par [51] of the judgment at first instance that her Honour was given inappropriately limited assistance by the appellant as to the financial evidence it relied on at the trial. In the result, and even though her Honour indicated that the appellant had "significant financial liabilities", the finding it was "proper in the circumstances to order a significant fine for this offence" must be tempered. As Mr Archer submitted, "the imposition of a fine of $160,000 on a company with net assets of $31,000 is demonstrably oppressive". Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p 339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p 333; and Profab Industries (49 NSWLR at p 714, 100 IR at p 76).