Inspector Ken Kumar v Donald William Steel

Occupational Health and Safety - prosecution under s26(1) of the Occupational Health and Safety Act 2000 - plea of guilty entered - defendant's culpability assessed against culpability of co-defendant, Francis James Burn - whether a reasonably foreseeable risk to safety - deterrence - consequence of breach - subjective factors - early plea of guilty - other subjective factors - penalty - orders. CATCHWORDS:

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

Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Inspector Ken Kumar v Francis James Burn [2005] NSWIRComm 206 Inspector Ken Kumar v Top Container Transport Pty Ltd (In Liquidation) [2005] NSWIRComm 203 Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 CASES CITED: Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 R v Shenton (2003) NSWCCA 346 R v Thompson, R v Houlton 49 NSWLR 383, 115 A Crim R 104 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166

Prosecutor: Mr R. Reitano, of counsel Solicitor: Criminal Law Practice, Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

Defendant: Mr G. Wilson, of counsel Solicitor: Deacons Lawyers

• 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 26(1) of the Occupational Health and Safety Act 2000

1 Donald William Steel ("the defendant") has been charged with one offence under section 26(1) of the Occupational Health and Safety Act 2000 ("the 2000 Act"). The defendant has entered a plea of guilty to the offence. 2 The offence is deemed to have been contravened by virtue of the defendant's status as General Manager of Top Container Transport Pty Ltd (In Liquidation) ("Top Container"). The prosecutor in that matter had filed an Application for Order against Top Container alleging a contravention of s8(1) of the 2000 Act, namely, Top Container, being an employer on 26 September 2001, at premises at 16 Childs Road, Chipping Norton ("the premises"), failed to ensure the health, safety and welfare at work of all its employees, in particular Mr Maxwell Cook. 3 In relation to the alleged contravention I found the offence proven and recorded a conviction. Top Container was fined $140,000: Inspector Ken Kumar v Top Container Transport Pty Ltd (In Liquidation) [2005] NSWIRComm 203. 4 The offence under s 26(1) has been particularised against Top Container and the defendant in the following way: Particulars of the contravention of the Defendant: 1. At all material times Donald William Steel ("Steel") of 86 London Road, Clayfield, Queensland, was the General Manager of Top Container Transport Pty Ltd (In Liquidation) ("the Company") an incorporated company with its registered office at 2 Wendt Road, Chambers Flat, in the State of Queensland. 2. At all material times, Steel had responsibilities relating to systems of work and work methods employed by the Company. 3. Steel, being a person concerned in the management of the Company, is deemed to have contravened section 8(1) of the Act by virtue of section 26(1) of the Act. Particulars of the contravention of the Company a) The Company, at all material times, was a corporation responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution of steel and ceramic products located at 16 Childs Road, Chipping Norton, in the State of New South Wales ("the premises"). b) The Company, at all material times, employed a number of workers, including Maxwell Cook ("Cook"), to work at the premises. c) The Company, at all material times operated a plant, namely a Daewoo forklift truck, model no 252-2 and serial no 11-00412 ("the forklift"), at the premises. d) On 26 September 2001, as part of his duties, Cook used the forklift to stack steel crates containing stainless steel welded pipes ("the crates"). The crates were constructed of steel and were approximately 6200mm long, 600mm wide and 570mm high. The weight of a fully laden crate was approximately 1400kg. e) The Company failed to ensure the health, safety and welfare at work of all the employees of the Company, in particular Cook, by: 1) Failing to provide safe systems of work in that the Company: i) failed to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability; ii) failed to provide and maintain a system of work that ensured that an employee was not exposed to the risk of the crates falling on the employee. 2) Failing to provide such training and supervision as was necessary to ensure the safety of all the employees of the Company, in that the Company: i) failed to supervise employees to ensure the crates were stacked in a manner that was safe and without risk of injury; ii) failed to train supervisors in the identification of risks associated with the stacking of the crates. f) As a result of the said failures, Maxwell Cook was fatally injured. Prosecutor's evidence

5 An Agreed Statement of Facts with annexures was tendered by the prosecutor against the defendant, in the sentence proceedings. In it the defendant was nominated as the general manager of Top Container. According to the document, Keralex Pty Limited (In Administration) ("Keralex"), occupied the premises and Top Container employed approximately twenty workers, including Mr Cook, to work at the premises on September, 2001. 6 Keralex was responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution of products including cooking oil and products. At the time of the alleged offence, it handled Stemcor steel products. It also operated a Daewoo forklift truck model no. 252-2 serial number 11-00412 at the premises ("the forklift"). 7 On September, 2001, Mr Cook used the forklift to stack steel crates containing the stainless steel welded pipes ("the crates"). The crates were approximately 6200mm long, 600mm wide and 750 high. The weight of a fully laden crate was approximately 1400 kilograms. 8 Twelve crates of steel were delivered to the premises from R & H Transport at around lunch time on 26 September, 2001 upon instructions from Stemcor A/SIA Pty Ltd ("Stemcor"). Mr Cook commenced work at about 10am. He was assisted by another Top Container employee, Mark Lomas ("Mr Lomas") with the unloading and stacking of containers of nuts and bolts using the forklift. 9 Mr Lomas finished work that day at about 2.30pm. Thereafter, Mr Cook worked alone without supervision stacking the crates using the forklift. At about 3.40pm, while Mr Cook was operating the forklift near the stack, the stack collapsed and one of the crates fell on top of the forklift. The force of the collapse of the stack on the forklift resulted in Mr Cook suffering fatal injuries. 10 A report contained in the brief of evidence dated 26 February 2002 and headed "Burnsall Haulage FLT Accident" produces calculations of the angle of tilt required to cause overturning of crates stacked six high. The report was commissioned by the WorkCover Authority of New South Wales and prepared by Senior Inspector Alan Kerruish. The width and height of the crates tested were identical to the dimensions of the crates which toppled over and fatally injured Mr Cook on 26 September 2001. An assumption was made for the purposes of the test that each case or crate in the stack was of equal weight and that the weight in each crate was evenly distributed. The report concluded that a six-crate high loose stack, with its centre of gravity at 3,300 mm above ground level, required a 456' angle of tilt to cause it to overturn. 11 Although the report does not purport to duplicate the exact conditions existing at the time of the fatal accident, some reliance may nevertheless be placed on it as an indication that the six crates stacked in two loose stacks by Mr Cook at the time of the accident (as the evidence suggests) required only a small angle of tilt in order to give rise to a risk of toppling over. 12 The Agreed Statement of Facts also states that Francis James Burn ("Mr Burn") was, "ultimately responsible for all systems of work and work methods employed by Keralex and Top Container." (The Agreed Statement of Facts does not volunteer who Mr Burn is, or, in what capacity he assumed ultimate responsibility for all systems of work). 13 The Agreed Statement of Facts also contains the following material extracted below: Prior to the accident date Top Container had no system of work in place for the stacking of the crates or any other container in the premises, other than leaving it to the discretion of Cook and Lomas. Prior to the accident date Top Container had no written procedures, work method statements or documented systems of work for the stacking of the crates in the premises. In particular, prior to the accident date Top Container did not undertake a risk assessment to identify the number of the crates that could be safely stacked on top of each other or the system of work associated with the stacking of crates on top of each other. Prior to the accident date Top Container did not provide supervision of employees, in particular Cook, during the stacking of the crates to ensure it was done without risks to health and safety. Since the accident date, Top Container implemented the following changes: a) Implemented a system on 2 October 2001 to: 1) inspect all products when received at the premises; 2) unload the product by overhead crane; 3) place damaged crates to the top of the stack; 4) to not stack crates more than 4 crates high or 2.4 metres whichever is the greater. b) Subsequent to Top Container engaging a safety consultant, Environment Friendly Logistics, implemented a system after 23 October 2001, to ensure the crates in the premises were made stable and secure and reduced in stacking height to below 4 metres. c) After 23 October 2001, Top Container set up a safety committee and implemented occupational, health and safety training for its employees, neither of which had previously been in place. 14 The Commission was also informed by the prosecution that the defendant has no prior convictions. Also tendered into evidence by the prosecution against the defendant was an ASIC extract showing the various companies of which the defendant is a director. Defendant's evidence

15 The defendant in the proceedings relied on an affidavit sworn by him on 18 November 2004. According to the affidavit, the defendant is employed as a business manager for James N Kirby Holdings Pty Limited ("Kirby Holdings"). The defendant has been employed in that position since 1 September, 2003. As of 17 December, 2004 the defendant plans to resign and will be applying for the old age pension. 16 The defendant said he attended an interview with Mr Burn, the director of Keralex, in about early February, 2001. During the interview, the defendant was offered a position as a debtor's clerk on a salary of $40,000 per annum. He commenced employment on 8 February, 2001 at the Brisbane office of Keralex, and immediately commenced a review of outstanding debtors. The review revealed several financial and operational problems. A review of the Sydney branch caused the defendant to have grave concerns for the future financial viability of Keralex. Shortly after, the defendant was appointed to a new position entitled, Financial Controller. 17 In about late March, 2001 the defendant attended the Sydney branch for the first time to discuss the current -debtors situation. In late April, 2001 the defendant began to attend the Sydney branch two days per week, in order to manage effectively the outstanding debtors problem. Other major concerns at the Sydney branch according to the defendant included the discovery that the invoicing was 1066 jobs behind. Costs and spending issues was also a concern. In relation to this latter concern, the defendant found that there were no proper controls on spending. It became apparent to the defendant that someone needed to be in a position of authority in order to determine and control all financial matters. At the same time the defendant estimated that for the month of April 2001 the Sydney branch would lose $50,000 to $70,000. 18 Following a discussion with Mr Burn and Mr Kirby, the managing director and chairperson of Kirby Holdings, it was agreed that the defendant would be appointed general manager of Keralex on a two year employment contract at a salary of $80,000 per annum. At this time the defendant was attending the Sydney branch two and one half days a week. 19 From 1 July, 2001 the defendant became employed by Top Container. Top Container, according to the defendant, was a service company created in about May, 2000 to remit wages to the employees of Keralex. 20 In about August, 2001 the defendant and Mr Burn interviewed Lyndsay Crowley ("Mr Crowley") after which Mr Crowley was offered the position of Manager of the Sydney branch. Mr Crowley commenced work at the Sydney branch on 3 September, 2001. At that time the defendant spent a few days at the Sydney branch effectively handing over to Mr Crowley his financial responsibilities, including debtors, invoicing and costing. After that time, the defendant did not attend the Sydney branch until some time after 26 September, 2001. 21 In his affidavit, the defendant contends that although occupational, health and safety was not part of his responsibilities he nevertheless took an active role in such matters at the Sydney branch. There were a number of reasons for this which the defendant has discussed in his affidavit as follows: i) suppliers and other entities with which he had dealings on behalf of Keralex raised safety issues with him; ii) employees approached him about purchasing safety equipment and about the need to carry out safety-related enquiries; iii) safety matters were brought to his attention during the course of his work at Keralex. 22 The defendant attended to these matters using his own credit cards, although later he was reimbursed by Keralex. The defendant's affidavit annexes his credit card statements which confirm the defendant's expenditure on safety matters during the period from early August, 2001. 23 The defendant also deposes in his affidavit to his high commitment to occupational, health and safety throughout his professional life. 24 The defendant also stated that he has suffered three heart attacks, most recently in August, 2002. He also suffers from Type II diabetes, high cholesterol, high blood pressure and arterial fibrillation. A medical report annexed to his affidavit, attests to these matters. 25 The defendant was not required by the prosecutor for cross examination. Prosecutor's submissions 26 In oral submissions the prosecutor referred to what is termed a "concession" in relation to the defendant's culpability in the following terms: "....it is conceded that Mr Steel was one of several people associated with....[the premises].....who was responsible for occupational, health and safety....although he had primary responsibility for financial matters." 27 The prosecutor contended in relation to the defendant's culpability that the defendant's geographical location (in Queensland) is neither exculpatory nor in any way a mitigating factor. On one view, according to the prosecutor, the defendant's absence from the work site may make the offence more serious, in that, absence from the work site may result in an obligation to be more vigilant, or, to take more steps to ensure safety. In addition, there is no evidence before the Court that someone else was responsible for safety matters, or, that the defendant was following up on safety matters in relation to which other persons had responsibility. 28 In written submissions, the prosecutor informed the Court that the maximum penalty for the offence is $55,000. 29 The prosecutor also submitted that the risk to safety was obvious, and, easy remedial steps were available to eliminate the risk (refer [13] of this judgment). 30 The obviousness of the risk according to the prosecutor is borne out by a number of factors, namely: i) the use of forklifts in a warehousing environment, "fairly naturally" caused concerns about safety; ii) given the weight being lifted (1400kgs) by a forklift, commonsense would dictate the necessity for assessing the risk to safety. In this regard, following Mr Cooks fatal accident, forklifts were no longer used. iii) The complete lack of any supervision and training must have rendered the work dangerous. 31 The prosecutor also contended that the likely consequences of the breach, given the shear weight and dimensions of the crate, was the tragic death of Mr Cook. 32 Issues of both general and specific deterrence were also important according to the prosecutor. In this respect the defendant's reliance on the fact that he had limited control over the work, and, was away from the premises at the time of accident, does not assist him, since according to the prosecutor, he was a manager, obliged to ensure the company performed its obligations. 33 Given all of the above objective criteria relevant to the circumstances of the offence, the prosecutor submitted that the offence is objectively serious. 34 In relation to the application of subjective factors, the prosecutor emphasised the secondary importance of such factors in the sentencing process. 35 The prosecutor conceded that the plea of guilty was entered by the defendant at a "relatively early stage". Defendant's submissions

36 The defendant's counsel, Mr Wilson, emphasised in oral submissions that the defendant was one of several people with involvement in occupational, health and safety matters at the premises, and, the majority of the defendant's time was spent looking after the financial concerns. Nevertheless, the defendant was pro-active, such that, as his affidavit confirms, when his attention was directed to a matter requiring attention to safety, the defendant attended to it. 37 The defendant, also relied on a "very short period of time" in which he had involvement in safety as mitigating his culpability. 38 Specific deterrence was addressed by the defendant through his counsel in oral submissions, who pointed out that the defendant is now 72 years of age, and, on the brink of retirement. 39 In relation to general deterrence the defendant submitted that the application of this principle should be balanced against present circumstances in which the initiative was taken by the defendant in occupational, health and safety matters, at the premises. 40 The defendant next addressed personal factors, and, submitted that he had no prior convictions, and, had had a long and distinguished employment career. He is "highly unlikely" to re-offend; and, at all times was co-operative with the authorities. The defendant had little or no involvement in the post accident measures (taken by Top Container) because from 3 September, 2001 Mr Crowley took over the defendant's responsibilities at the premises. 41 According to the defendant he entered a plea of guilty at the earliest opportunity, namely, at the second mention of the matter before the Court, following the service of the brief by WorkCover. 42 The defendant also referred to his deteriorating health as a result of the stress caused by the present proceedings, as well as the tragic accident to Mr Cook. 43 Finally, the defendant contended that the penalty should be towards the lower end of the range. 44 The defendant was then asked by the Court to comment on the aspect of reasonable foreseeability, to which the defendant responded that from his perspective the foreseeability (of the risk to safety), "would be rather limited", because, he was not actively involved in the warehouse at the time of the fatal accident. Consideration

45 The evidence against the defendant reveals that he was appointed to the position of general manager by Mr Burn in relation to running the "Sydney branch" (the premises). The defendant assumed his responsibilities as general manager in relation to the premises some time from about June, 2001. Even though Mr Crowley was appointed manager of the premises, on 3 September, 2001 the defendant appeared to play a not insignificant role in the appointment, being one of two people who interviewed Mr Crowley for the position. According to the defendant, in his affidavit, Mr Crowley's appointment was made to facilitate the operation of the premises on a cost-effective basis, although one of the main reasons for selecting Mr Crowley was because of his extensive experience in occupational, health and safety involving fuel and chemicals. 46 The defendant, although adamant that his role in relation to the premises was confined to financial matters, nevertheless became actively involved in attending to all safety matters to which his attention was directed. 47 It appears to be accepted, however, by the parties that the defendant was one of several other persons who had safety responsibilities at the site. This concession, I take to mean that the defendant was not solely responsible for matters of safety at the premises and therefore his culpability should be shared and moderated alongside other responsible persons. Possible contenders for this shared culpability would appear to be Mr Burn and Mr Crowley. 48 I accept the evidence, which was uncontested, that the defendant took the initiative on many occasions as general manager, and actively attended to occupational, health and safety matters. This behaviour, while commendable, is no more than is required of a defendant in the discharge of his or her statutory obligations to ensure the health, welfare and safety of workers at work or of other persons at the workplace. In other words, the defendant's behaviour was not "above and beyond the call of duty", but simply what the legislation requires of persons in the discharge of their duties to ensure safety. 49 Nor did this obligation end when Mr Crowley was appointed to the position of manager of the same workplace. The defendant maintained his position as general manager during the same period. 50 Nevertheless, the defendant's role, and his culpability, may be assessed against the culpability of Mr Burn, who has been sentenced under the 2000 Act in relation to his role as director of both Keralex and Top Container, concerning the events leading up to Mr Cook's fatal accident on 26 September, 2001: Inspector Ken Kumar v Francis James Burn [2005] NSWIRComm 206. 51 In that judgment I found: [57]The evidence against the defendant reveals that he was the sole director of both Keralex and Top Container on 26 September 2001. He also negotiated substantial loans on behalf of Keralex and Top Container with Time Plan and other financial institutions in order to finance the relocation of his business operations to the premises. The defendant also actively sought contracts in order to enlarge the business operations of Keralex and Top Container including the contract with Stemcor to store Stemcor products at the premises. [58]These activities suggest that the defendant was substantially involved in the Sydney operations of the two corporate defendants at the premises. The defendant submitted in the sentence proceedings that following Mr Steel's appointment as General Manager (of Top Container) he "lost all control of the companies". In oral evidence, this statement was amended to having "lost 75 percent of control". In support of this particular submission, the defendant said that once he successfully obtained the contract for the storage of the Stemcor products he left Mr Steel and Mr Crowley in charge of the further arrangements. [59]Two observations may be made about this particular submission. First, the final details to be sorted out between Mr Steel and Mr Crowley on the one hand, and Stemcor on the other, does not negate in any way the evidence that suggests that the defendant played an active and substantial role in the business activities of the two corporate defendants at the premises up to and at the time of the offence. [60]Secondly, even if the evidence disclosed that the defendant had effectively withdrawn from all business activities associated with the premises this would have little, if any, impact on his culpability in relation to the offence. This is because of the now well-entrenched principle in occupational health and safety law, that an employer cannot delegate his responsibilities or obligations under the legislation to a supervisor or manager, no matter how well qualified or experienced that manager may be: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at 136. [61]Nor can there be any doubt on the evidence that the defendant, as sole director and therefore the alter ego of both Keralex and Top Container, was effectively the employer of both Mr Steel and Mr Crowley. [62]The evidence reveals that the defendant directed no attention at all to any matters concerning safety. In his first affidavit the defendant said he relied heavily on "experienced managers and staff in control of the NSW depot". He assumed that safety standards were being met at the premises. This assumption was based on, "the many years experience collectively within the staff plus the fact that I had experienced administrative and managerial staff in place". [63]In the first affidavit the defendant added, "although I relied heavily upon the experienced managers and staff in control of the NSW depot, I accept that I am ultimately responsible for the operation in that depot". 52 Unlike Mr Burn, the defendant had a more defined role in relation to the premises. He was employed as general manager primarily to attend to financial, not operational matters. He did not take up the position of general manager in relation to the Sydney office until some time in June, 2001. In addition, the defendant conscientiously and diligently attended to all safety responsibilities encountered at the premises during the period he acted in the position of general manager. 53 These considerations enable me to conclude that the defendant's culpability in relation to the offence, falls well below the culpability of Mr Burn: see Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 at [135]-[137], [140]. Maximum penalty

54 The defendant faces a maximum penalty of $55,000. Reasonably foreseeable risk to safety

55 The risk to safety arose from the risk of the crates toppling over. The risk of crates toppling over arose from the unsafe method employed to stack crates. The unsafe method utilised to stack the crates was the direct result of the non-provision, by the defendant as general manager of the premises to Mr Cook and other employees, of any practices, procedures, training, instruction or information in relation to the safe undertaking of the task. 56 There were inherent dangers associated with the operation. Mr Cook at the time of his fatal accident was working alone. He was working with heavy and cumbersome items of plant, namely the crates and contents; and using a forklift to transport and stack the items. 57 In all these circumstances no other conclusion is available other than that the risk to safety was both obvious and foreseeable. 58 This conclusion renders the offence objectively serious: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 at 216 per Walton J, Vice-President. 59 In addition, many simple, effective and available measures could have been implemented by the defendant prior to the 26 September, 2001, and would have substantially obviated the risk. The objective seriousness of the offence is compounded by these additional matters: Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 at [35].

60 In this matter general deterrence is relevant. The circumstances of this tragic accident reveal yet again the paramount importance of workers' safety in the workplace and the need to seek out and identify risks to safety, and, implement measures to obviate and eliminate those risks. Workers at the very least are entitled to work in an environment in which they are secure in the knowledge that such measures have been taken so that they may work without fear of injury to themselves and others. 61 In relation to specific deterrence, the defendant is 72 years of age, in ill-health, and, on the brink of retirement. According to the defendant's affidavit, he plans on retiring on 17 December 2004, after which he intends to apply for the old age pension. 62 A historical personal extract prepared by the Australian Securities and Investment Commission ("ASIC") was tendered by the prosecutor in these proceedings. The extract, dated 3 December, 2004, disclosed that as at that date the defendant was a director and shareholder of Ben Steel Consulting Pty Ltd, with a business address in Queensland. The same extract discloses that the defendant is also a director of River City Container Services Pty Ltd, a company also with its business address in Queensland. 63 There is no mention of either of these corporations in the defendant's affidavit. 64 In all the circumstances I propose to include as a component of the penalty a small amount for specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at 61. Consequence of the breach

65 Here, the death of Mr Cook manifests the degree of seriousness of the risk to safety to which Mr Cook and others at the premises were subjected. This is because of the complete lack of any training, instruction or supervision or procedures in an environment in which heavy items of plant were transported and stored and heavy machinery utilised such as a forklift, at the time of the offence. This factor contributes to the seriousness of the offence: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] . Subjective factors

66 The prosecutor has conceded that the defendant entered a plea of guilty at a relatively early stage of the proceedings, although not at the earliest opportunity. The defendant contended that he pleaded guilty to the Application for Order on 18 May, 2004, and, that this should be regarded as a relatively early plea justifying a discount between 20 and 25 percent. 67 The Court file confirms that the plea of guilty was entered on 18 May, 2004. The plea appears to have been entered shortly after the defendant was served with the brief of evidence. 68 The plea of guilty entitles the defendant to a discount of his sentence in accordance with the principle outlined in R v Thompson; R v Houlton 49 NSWLR 383; 115 A Crim R 104. 69 Although there is no requirement to quantify the discount, sentencing judges are encouraged to do so: R v Thompson; R v Houlton. This was emphasised by the Court of Criminal Appeal, New South Wales, in R v Shenton (2003) NSWCCA 346, 17 November, 2003 at [5], [11] and 12. 70 I consider that in the circumstances here, an appropriate discount for the utilitarian value of the plea is 25 percent. Other subjective factors

71 The defendant is also entitled to a measure of leniency on the basis that he has no prior convictions. 72 The defendant has also co-operated with WorkCover. I accept the evidence, detailed in the affidavit, that the defendant has had a long and distinguished professional career with strong commitment to occupational, health and safety matters in the workplace. Penalty and Orders

73 Taking into account the maximum penalty, the objective seriousness of the offence, the role and culpability of the defendant as general manager of the premises, the discount for subjective factors in mitigation and, any other matters under s21A of the Crimes (Sentencing Procedure) Act 1999 I make the following orders: 1. In Application for Order No IRC 5365 of 2003 the defendant is found guilty, and is convicted and fined $5,000, with a moiety to the prosecutor. 2. The defendant is to pay the prosecutor's costs of the sentencing proceedings as agreed, or, in the absence of agreement, as determined by the Court.

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