Inspector John Forster v Mellor Enterprises Pty Ltd and Anor

Industrial Relations Commission (NSW)|2009-04-20|Before: Kavanagh J, Mr P

CITATION: Inspector John Forster v Mellor Enterprises Pty Ltd and Anor [2009] NSWIRComm 38

Prosecutor: PARTIES: Inspector John Forster Defendant: Mellor Enterprises Pty Ltd and Anor

CATCHWORDS: Occupational Health and Safety Act 2000 ss8(1) and 26(1) - pleas of guilty - offence by Corporation and its Manager - head contractor harvesting cotton failed to ensure safe system of work on cotton farm - serious risk - failure to supervise young employee - small business in country town - penalties

LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Limited [2003] 130 IR 364 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383

Prosecutor: Mr R.C. Pontello of counsel Solicitors: Mr W. Steenson Senior Solicitor WorkCover Authority of NSW LEGAL REPRESENTATIVES: Mr P. Rowe of counsel Solicitors: Mr D. Carroll Macrossan & Amiet By their agents: Carroll & O'Dea

3 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Monday 20 April 2009

IRC630 of 2008 INSPECTOR JOHN FORSTER v MELLOR ENTERPRISES PTY LTD Prosecution under s8(1) of the Occupational Health and Safety Act 2000 IRC631 of 2008 INSPECTOR JOHN FORSTER v JON MELLOR Prosecution under s26(1) and s8(1) of the Occupational Health and Safety Act 2000

1 Two prosecutions are brought by Inspector Forster of the WorkCover Authority of New South Wales by way of Applications for Order, one against Mellor Enterprises Pty Ltd (the defendant company) and the other against its manager, Jon Mellor, (the individual defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged the defendant company on 15 May 2006 contravened s8(1) of the Act in that it failed to: Ensure the health, safety and welfare at work of all its employees, and in particular, Paddy Aidan McGuire, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

In particular: (a) The defendant failed to provide and maintain a safe system of work for the process of placing tarpaulins over the cotton modules at the site. (b) The defendant failed to provide and maintain a system of work, which did not require employees to work inside the cotton module builder (c) The defendant failed to provide adequate information, instruction, training and supervision for the process of placing a tarpaulin over each cotton module at the site. (d) The defendant failed to conduct an adequate risk assessment of the process of placing tarpaulins over the cotton modules at the site, including the use of the 'monkey' to pull the tarpaulin over the cotton module and the presence of employees inside the module builder.

As a result of the abovementioned failures, Paddy Aidan McGuire was placed at risk of injury and was fatally injured. 3 It is alleged the individual defendant, on 15 May 2006 by virtue of s26(1) contravened s8(1) of the Occupational Health and Safety Act 2000 being a person concerned with the management of the corporation in that he failed to: Ensure the health, safety and welfare at work of all its employees, and in particular, Paddy Aidan McGuire, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

In particular: (a) The corporation failed to provide and maintain a safe system of work for the process of placing tarpaulins over the cotton modules at the site. (b) The corporation failed to provide and maintain a system of work, which did not require employees to work inside the cotton module builder (c) The corporation failed to provide adequate information, instruction, training and supervision for the process of placing a tarpaulin over each cotton module at the site. (d) The corporation failed to conduct an adequate risk assessment of the process of placing tarpaulins over the cotton modules at the site, including the use of the 'monkey' to pull the tarpaulin over the cotton module and the presence of employees inside the module builder.

As a result of the abovementioned failures, Paddy Aidan McGuire was placed at risk of injury and was fatally injured. 4 Each defendant has pleaded guilty to the charges. 5 Mr R.C. Pontello of counsel appeared for the prosecution and Mr P. Rowe of counsel appeared for the defendants. The prosecution relied upon an Agreed Statement of Facts, photographs of "Wirra", Bullarah-Bronte Road, Moree NSW 2400 and module builder taken by Inspector John Forster on 16 and 30 May 2006, depicting the view of incident scene; Mellor Enterprises Pty Ltd Induction Manual "Cotton Harvesting Operations" (Version 20 February 2006); Mellor Enterprises Pty Ltd Safe Operating Procedures Manual (Version 20 February 2006); Gunnedah Industries Suggested Safe Module Builder Operation Procedures; WorkCover Prohibition Notice No. 7-108357 issued by Inspector John Forster upon Mellor Enterprises Pty Ltd on 17 May 2006; Mellor Enterprises Pty Ltd Induction Checklist for Paddy McGuire dated 3 March 2006 and InterSafe Supplementary Report on "Risk Assessment of Hydraulic Controls" prepared by Roger Kahler dated 22 May 2006 and two Victim Impact Statements. 6 Mr Rowe tendered the affidavit of Jon Lloyd Mellor sworn 21 January 2009 and the affidavit of Gregory Shane Mellor also sworn 21 January 2009. A number of relevant documents were attached to the affidavit of Gregory Mellor relating to financial records of the company and proposed safety changes in the operation of the business. 7 The Agreed Statement of Facts relevantly reads: 4. At all material times, Mellor Enterprises was an employer. 5. At all material times, Mellor Enterprises' undertaking was the provision of picking and associated harvesting services to the cotton industry, including cotton module building. 6. At all material times, Mellor Enterprises was contracted to perform work at a property known as "Wirra", Bullarah-Bronte Road, Moree in the State of New South Wales ("the property"). The Manager - Jon Mellor 7. Jon Mellor was employed in the position of Manager and was Mellor Enterprises' senior representative at the property. 8. Jon Mellor's responsibilities, as Manager for the corporation, included: (a) overall control of the work site - as it related to collection of cotton and associated tasks including, but not limited to, cotton module building; (b) management of the corporation's staff at the site; (c) advising employees of safe operating procedures; and (d) providing training to new employees in relation to the safety, maintenance and operating procedures of plant, including cotton module builders. The workforce 9. At all material times, Mellor Enterprises employed Paddy Aidan McGuire (date of birth: 9 January 1985). 10. Mr McGuire was engaged as a Module Builder Operator. 11. Mr McGuire commenced employment with Mellor Enterprises on or about 19 February 2006 and had been working for Mellor Enterprises for approximately 3 months at the time of the incident. 12. At all material times, Mellor Enterprises also employed (among others): (a) Alexander Loram, as a Module Builder Operator ("Mr Loram"); (b) James Bright, as a Module Builder Operator and subsequently as Bole Buggy Driver ("Mr Bright"); (c) Luke Mellor, as a Leading Hand, Picker and Bole Buggy Driver; (d) Daniel Wade Strickfuss, as Cotton Picker Operator ("Mr Strickfuss"); (e) Jon Mellor, as Manager. The Cotton Module Builder 13. At all material times, Mellor Enterprises owned and operated a cotton module builder identified as Unit No.1 ("the Module Builder"), which had been manufactured by Gunnedah Industries. The module builder was purchased new from Gunnedah Industries during the 1996 season. The purpose of a cotton module builder is to compact harvested cotton into 'modules', which can then be covered with a tarpaulin. These modules are then ready for transporting elsewhere for processing (e.g. a processing plant known as a 'cotton gin'). Annexed hereto and marked ' A ' is a photograph showing the Cotton Module Builder. 14. The module builder supplied by Gunnedah Industries to Mellor Enterprises was supplied without a specific safety manual for the machine. Mellor Enterprises did not subsequently seek such a document from the manufacturer, when advised by the manufacturer in or about March 2005. 15. The Module Builder is operated by hydraulic power. Among the operating components of the Module Builder are: i. the 'tramper' - a large metal object which, when activated, descends and acts to compact the cotton inside the Module Builder. The tramper can be operated in either automatic or manual mode. Annexed hereto and marked ' B ' is a photograph showing the 'tramper' (in a raised position). ii. the 'monkey' - a metal bridge across the top of the module builder, which has the capacity to travel the length of the module builder. Annexed hereto and marked ' C ' is a photograph showing the 'monkey'. 16. The manual operation of the monkey and tramper were carried out from two control levers situated at a control platform at one end of the Module Builder. At the time of the incident, the levers protruded above the rim of the Module Builder. Annexed hereto and marked ' D ' is a photograph showing the state of the control levers at the time of the Inspector's visit to the site on 17 May 2006 (the day after the incident). 17. The left-hand lever operated the travel of the monkey. The lever is pushed to move the monkey away from the control platform and pulled to move the monkey towards the control platform. 18. The right-hand lever operated the tramper. The lever is pushed to lower the tramper and pulled to raise the tramper. 19. The operating pressure of the hydraulics to operate the monkey was approximately 300 psi (pounds per square inch). The operating pressure of the hydraulics to operate the tramper was approximately 2000 psi. 20. There is a pressure-regulating valve in the hydraulic circuit to reduce the pressure for the monkey. On the manual valve body there is also another diverter valve that takes the pressure off the monkey travel to the hydraulic levers and valves that operate the rear door and wheel 'raise and lower' hydraulic cylinders. 21. There is also an automatic control system that can operate the monkey and tramper. This is computer controlled and there is a diverter valve that is situated on the floor of the control platform to take the hydraulic supply, either to the automatic (computer) valve body or the manual valve body. This lever - separate to those that manually control the monkey and the tramper - is in auto mode when it is up, and manual mode when it is down. 22. A Coronial Inquest was held at Moree Local Court on 14 November 2007 and 6 December 2007. The evidence at the Coronial Inquest indicated that the Cotton Module Builder was in manual mode at the time of the incident. The Incident 23. At about 8:00pm on 15 May 2006, in the course of his employment with Mellor Enterprises at the site, Mr McGuire was operating the Module Builder. 24. Mr McGuire had finished building a module of cotton and was in the process of placing a tarpaulin over the top of the module prior to removing the Module Builder from around the module. 25. Mr McGuire ran the tarpaulin out along the top of the module by tying the end of the tarpaulin to the device on the Module builder known as 'the monkey' and moving the monkey to the end of the Module Builder. 26. After running out the tarpaulin, Mr McGuire walked along the top of the module to the other end of the Module Builder, in order to undo it from the monkey and push the end of the tarpaulin down into the corner of the Builder. 27. It is apparent that, while Mr McGuire attempted to pull the tarpaulin down over that end of the module, either the tarpaulin itself or a rope attached to the tarpaulin caught on the levers (at the other end of the Module Builder) which controlled the tramper, causing them to move and, consequently, to activate the tramper. 28. Once activated, the tramper rapidly descended before coming into contact with Mr McGuire. 29. At the time of the incident, Mr Loram was on the ground near the rear of the Module Builder. Mr Loram was apparently in the process of preparing to remove the completed cotton module from the Module Builder and opening the rear door to allow Mr McGuire more room to push the tarpaulin down over the end of the cotton module. 30. While the tarpaulin was apparently being fed through to Mr Loram, he heard a scream. When Mr Loram heard the scream, he went up to the control platform. He lifted the end of the tarpaulin off the control levers and then used the controls to raise the tramper, which had descended on Mr McGuire. 31. Prior to the incident, another employee - Mr Bright - was driving another item of plant, known as a 'Bole Buggy' in the field and had observed Mr McGuire pulling the tarpaulin over his module. At the time of the incident, Mr Bright was approximately 200 metres away from Mr McGuire's Module Builder when Mr Loram called on the two-way radio to inform him of the incident. 32. Mr Bright approached the Builder and saw Mr McGuire on his knees in a crouched position with his head turned and his arms towards his back. Mr Bright observed that the tarpaulin was near the levers that manually operate the monkey and the tramper. He climbed on top of the module and went to render assistance to Mr McGuire. 33. Luke Mellor, Daniel Strickfuss and Jon Mellor also attended the scene of the incident. Mr McGuire died at the scene. The cause of death was "brain stem injury from extensive basal skull fractures". The procedure for placing a tarpaulin on a cotton module 34. The company's usual procedure for placing a tarpaulin on a cotton module was to put the tarpaulin on top of the module and unravel it by hand while it was still in the module builder. 35. It was done this way to allow for the spreading of the tarpaulin while there was still fall protection available. If the tarpaulin were spread after the builder was removed, it would require someone climbing back on top of the module without having the sides of the builder available to prevent a fall. 36. During the course of Mr McGuire's employment with Mellor Enterprises, Mr McGuire and the other module builder operators had started to use another method of placing the tarpaulin over the module. The method was to use the monkey to pull the tarpaulin along over the top of the module by tying it to the monkey and running the monkey away from the control platform to the rear end of the builder. 37. As the monkey took the tarpaulin along, it was rolled out from the control platform and had to be undone at the end of the builder and manually pulled further down to go over the end of the module. 38. There was also another known method, used by other contractors and workers in the industry, to place a tarpaulin over a cotton module. This other procedure was to tie the tarpaulin onto the rear door of the builder and let it be pulled over the cotton module while the builder is being removed from the completed module. Training/supervision 39. The method of manually spreading the tarpaulin over the module was developed by Mellor Enterprises a number of years ago. This procedure was demonstrated to Mr McGuire prior to him taking on the operation of the Module Builder. It appears to have also been part of the general work practices of other employees who assisted Mr McGuire when he began performing this work. 40. Employees were taken through Mellor Enterprises' safe operation procedures manual and induction manual. 41. Mellor Enterprises had two manuals to train their employees. One was an induction manual for "Cotton Harvest Operations" and a "Safe Operations Procedures Manual". 42. Mr McGuire apparently did not see these manuals until approximately two weeks after his employment with Mellor Enterprises commenced. Mr McGuire did not sign the employment induction checklist until 3 March 2006. 43. Mellor Enterprises did not undertake a risk assessment or warn employees of the hazards associated with the use of the monkey to pull the tarpaulin along the top of the module. 44. Following the incident, Inspector Forster issued the following Notices: · Prohibition Notice (No. 7-108357) to immediately cease use of the Module Builder; · Improvement Notice (No. 7-108367) in relation to risks associated with the operating controls of the Module Builder, including their inability to be locked 'off'; and · Improvement Notice (No. 7-108363) in relation to the non-identification of the control levers on the Module Builder. 45. Following the incident, Mellor Enterprises engaged the services of Mr Roger Kahler of the InterSafe Group Pty Ltd (referred to hereafter as the 'InterSafe Report'] to: (a) investigate and report on the cause of the incident giving rise to the death of Mr McGuire; (b) provide a report as to the modifications to cotton module builders that would minimise the likelihood of personal entrapment in cotton module builders and advise on the system of work. 46. The InterSafe Report explored a number of possible scenarios including the possibility of problems with the hydraulics of the Module Builder. The investigation found that there was no apparent fault with the hydraulics of the Module Builder and that the scenario that the tarpaulin or the ropes attached to it had 'tripped' the control levers was the most likely scenario. WorkCover engineers reviewed the Intersafe Report and found its investigation and conclusions were plausible. Annexed hereto and marked ' E ' is a copy of the Intersafe Report. (47. Intentionally blank) 48. Mellor Enterprises also provided a copy of the InterSafe Report to the Cotton Australia and Australian Cotton Harvesters Association for the purpose of informing the industry of potential dangers and how Module Builders may be modified, as well as advising of the system of work subsequently adopted by Mellor Enterprises in working with Module Builders. 49. Following the incident, Mellor Enterprises carried out a risk assessment on the method of placing the tarpaulin over the cotton module. Mellor Enterprises determined to fit a hinged barrier along the front of the operator's position that folds down and diverts all the hydraulic oil flow from the pump through a diverter valve to the storage tank when a person enters the Module Builder. This prevents any hydraulic power being able to be activated through the control levers until the hinged barrier is reset when the operator returns to the control platform. Co-operation 50. Mellor Enterprises and Jon Mellor have co-operated with WorkCover throughout its investigations into this matter. No Prior Convictions 51. Mellor Enterprises and Jon Mellor do not have any prior convictions under NSW occupational health and safety legislation. Early Plea of guilty 52. Mellor Enterprises and Jon Mellor each entered a plea of guilty at an early stage of proceedings - namely, the second directions hearing on 8 August 2008.

Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). Using the "instinctive synthesis" approach, the court would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Their Honours recognised the "instinctive synthesis" approach to sentencing gave rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had in order to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace.

Consideration 12 In a consideration as to penalty the Court must first direct its attention to the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence " . . .

And in Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected . . . 13 As set out in the Agreed Statement of Facts, the defendant company was operating a cotton harvesting procedure. Mr McGuire, its employee, was drawing a tarpaulin over the top of the cotton modules after harvesting. He was standing on the tray of a truck. He was not using the usual system of work for the placing of the tarpaulin which had been demonstrated to him. However, other employees had also adopted the system being used by Mr McGuire. The engine of the truck was still idling. The engine operated the hydraulics on the truck which hydraulics maneuvered the monkey and a tramper. The inappropriate manual method being used to pull the tarpaulin over the cotton module required the use of the monkey to assist. The hydraulics on the truck activated the tramper on the truck. Either the movement of the tarpaulin or a rope attached to the tramper caught the lever of the hydraulics and, given the engine of the truck was still on, the tramper was activated. Mr McGuire was working directly underneath the tramper at the time it was activated. He suffered fatal injuries as it came down upon him. 14 Injury or death as a consequence of an incident will not, itself, dictate the seriousness of the offence or the amount of penalty, but can be indicative of the degree of seriousness of the risk to health and safety to which Mr McGuire was subjected. The seriousness of risk became a reality and was manifested in the occurrence of Mr McGuire's death (Tyler v Sydney Electricity (1993) 47 IR (at 5)). 15 Mr McGuire was young and inexperienced, aged 21 years. He had been working for Mellor Enterprises Pty Ltd for approximately three months. Such facts are relevant to the degree of the risk to safety to which he was exposed. In WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383, Walton J, Vice-President, said at [230]: In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers.

While the particular enterprise did not engage a large number of young, inexperienced employees, Mr McGuire was young and inexperienced and performing a task in an unsafe manner while unsupervised. Two other employees were also working on the cotton modules at the site on the relevant date and were exposed to the same risk. These facts enhance the seriousness of the offence. 16 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated: [82] 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. . . .

The degree of the foreseeability of an offence therefore is a significant factor to be taken into account when assessing the level of culpability of the defendants. 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 gravity of the offence. In using the monkey to pull the tarpaulin along the top of a cotton module, Mr McGuire was required to walk underneath the tramper. While the engine of the truck continued to run the hydraulics could be accidentally activated. The tramper could thereby be activated. The supplier's manual for use of the hydraulics had a warning the truck should not be left in idle, but rather the engine turned off. There would then be no opportunity to activate the hydraulic system. This manual was not in the possession of the employer until after the incident. Further, Mr Jon Mellor, the Manager on site, was not supervising and should have taken better and reasonable care to ensure the health, safety and welfare of Mr McGuire. He did not perceive him performing the task. In such a circumstance there was a foreseeable element to the risk. 17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that consideration has also been considered in some detail in Capral (at [71]-[77]). Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: [74]. . . both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 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. 18 Elements of specific and general deterrence assume significance in cases where employees are required to work with large, complex machinery in primary industries. Much farming work requires the use of dangerous machinery. Employees operating dangerous machinery in farming operations must be made aware that there is serious risk of injury or death if, in handling heavy machinery, there is no care taken to ensure employees follow safe work practices. The circumstance revealed in this incident is indicative of the need once more to remind farmers and farming contractors of their obligation under the Occupational Health and Safety Act 2000 to ensure safe working. Therefore, an element of general deterrence is relevant in this consideration as to penalties. 19 As to specific deterrence, the corporate defendant is no longer engaged in cotton farming and harvesting. However, it is still operating with heavy mechanical units in an earthmoving business. It employs up to 14 permanent employees. Mr Jon Mellor still works in a supervisory capacity in the earth moving business. Therefore there is a clear need to encourage a pro-active approach to health and safety by an element of specific deterrence being included in this consideration as to penalties. 20 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendants. As was said in R v Way (2004) 60 NSWLR 168 at [56]: ... it 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).

Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" (see R v Gallagher (1991) 23 NSWLR 220). 21 Subjective considerations have been placed before the court. The company had expended some significant monies on re-designing safety procedures for its worksites and has re-designed its existing safe working procedures. Mr Mellor assumed responsibility for instruction of the company's safety procedures but there was no specific risk assessment or documentation for the performance of the task of covering the prepared cotton modules after harvest. While two systems were used, employees felt free to vary those procedures. Neither procedure, although demonstrated to employees, was recognised in documentation, training and supervision as a required safe work practice. Hence, Mr McGuire and other employees had varied the recommended procedure to be followed and no supervisors of the company knew of the alternative practice being followed. 22 I am, however, now satisfied all the company's work safe methods have been redesigned after risk assessment. Independent advice has been sought and each task is now risk assessed. Risk assessment should involve employees on site who perform the task and can thereby contribute to the design of the safe work method. By contacting the farmers' organisation and by designing a barrier to ensure avoidance of a recognised risk, I am satisfied the Mellors were contrite and concerned. However, risk assessment of tasks must be ongoing and safe work methods must be rigorously enforced through training and supervision. These simple and remedial steps were available and would have ensured the safety of the injured employee. I am persuaded the defendants are unlikely to re-offend. I accept the new safety measures in place reflect the defendants' commitment to workplace safety. 23 Neither defendant has any prior conviction under the Occupational Health and Safety Act 2000. Therefore, the maximum penalty faced by the corporate defendant is $550,000 and the maximum penalty faced by the individual defendant is $55,000. Both receive the benefit a discount of 25 percent for the utilitarian value of an early plea (see R v Thomson; R v Houlton) and it is noted they co-operated with the WorkCover Authority in its investigation.

24 The defendant company was originally established as an earthmoving business. It had continued to grow and became, also, a significant sub-contractor for harvesting and farming operation. Since the incident the cotton harvesting work has ceased and the company now concentrates on its earthmoving business. The company had a significant financial turnover of some $4 million in 2008. It contributes to the successful industrial environment in a country town by providing employment on a permanent basis. This is to be commended. The individual defendant, as company manager, however, has mortgage and hire purchase commitments taken from his annual income of $80,000 (approximately) a year. There is no claim as to financial impecunity in order to meet penalty but I accept this is not a large company enjoying great profit and Mr Mellor is not a person of substantial means. 25 I am satisfied that in accepting responsibility for the tragic incident involving Mr McGuire, the defendants have expressed genuine contrition for the incident. This contrition is reflected in each plea of guilty which I accept. 26 Under s30A of the Crimes (Sentencing Procedure) Act 1999, if a Victim Impact Statement has been received by the court a victim to whom it relates (whether a member of the immediate family or other) is entitled to read out the whole or any part of the Statement to the court. The Statement may be read out at such time as the Court determines after the defendant has been convicted. Mr Padraig (Paddy) McGuire read out a Victim Impact Statement related to the effect the death of his son had on him and his family. I accept it has been devastating. Mrs Lynette McGuire read a statement on behalf of the sister of the deceased. It was difficult for both of them. I have no doubt both victims have been dramatically affected both physically and psychologically by the tragic death of young Paddy McGuire as has Mrs McGuire, his mother. 27 I take into account the objective seriousness of this offence as well as the subjective features placed before me. Taking into account all the above matters but acknowledging the importance of the objective seriousness of the offence in determining penalty for these charges, I make the following orders:

Orders 1. In Matter No. IRC 630 of 2008, I find the corporate defendant guilty of the offence as charged. The defendant shall pay a penalty of $120,000 with a moiety to the WorkCover Authority of NSW.

In Matter No. IRC 631 of 2008, I find the individual defendant guilty of the offence as charged. The defendant shall pay a penalty of $20,000 with a moiety to the WorkCover Authority of NSW.

The prosecutor shall receive one order as to costs. The defendants are to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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At a glance

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Judgment (24 paragraphs)

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Cases Cited (10)

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