8 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in cases such as this must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. The evidence led demonstrated, to the requisite degree, that the offences charged were each proven and, furthermore, that the offences were serious.
9 This is yet another prosecution where a very serious injury has resulted from a person having a part of their body drawn into the unguarded nip point of a machine. On the evidence, there can be no doubt at all that what occurred was both entirely foreseeable, indeed foreseen, and that there were simple steps available which would have ensured that this risk to safety could not have materialised.
10 The conveyor in question, originally constructed in Victoria in 1993, was adapted for use at this waste recycling plant in 2003, commencing operation in July or August that year. It had been the subject of risk assessments before it was brought into operation. The assessments identified the need for guarding and isolation switches, to ensure that entrapment and personal injury did not occur.
11 The guarding installed was inadequate. It did not adhere to the applicable Australian Standards; it did not prevent access to nip points; it did not ensure that if the guard was removed, the conveyor would cease operating, indeed, the guard was bent out of the way, to enable access to the conveyor to be obtained while the conveyor was moving. While the company's written safety procedures directed that maintenance work not be conducted while machinery was operating, those procedures were not observed. The site supervisor directing Mr Moore's work, Mr Abela, did not observe the applicable operating procedures, which they had both been given, on Mr Soars' uncontested evidence.
12 However, it was also an agreed fact that neither Mr Abela, Mr Moore nor another employee on site, Mr Spark, had been given any formal information, instruction or training, in relation to the cleaning of the conveyors. There was also no reference to conveyors in the employee induction manual, or in the OHS site safety plan, which had, in any event, not been given to those employees. The conveyors were cleaned two or three times a week, but there was no written procedure in place as to how the work should be done safely. The way in which it was in fact done, included removing the guards and cleaning the conveyor while it was moving, a patently unsafe approach. The only warning as to safety given to Mr Moore was 'watch out and be careful'. He learnt how to do the work by observing it being done by others.
13 I accept that relevant to a consideration of the nature and seriousness of the offence, is that there was a site supervisor employed and that the company had certain safety procedures in place. In the absence of those factors, undoubtedly the offences would have been even more serious than they were. Also relevant, however, is the fact that Mr Abela had been employed in the position of site supervisor for only a month. He had been employed by the company for about three years beforehand, but as a truck driver. There was no evidence that he had any relevant experience or qualifications for the supervisor's position to which he was appointed, particularly in relation to safety. He had qualifications as a diesel mechanic.
14 On Mr Soars' evidence, Mr Abela's appointment was consistent with the company's policy of promotion from within. It is also relevant that Mr Soars was personally involved in Mr Abela's induction at the site, with the former site supervisor, who had resigned. Mr Soars also visited the site on three subsequent occasions, to discuss maintenance and site safety operations with Mr Abela.
15 Undoubtedly, the company's policies of promoting from within and employing and training apprentices and trainees, are commendable. Nevertheless, given the onerous obligations which the Act imposes on employers such as the company, when adopting such an approach the employer must take adequate steps to ensure that the employees who are given responsibility for ensuring that the company meets its safety obligations under the Act, are themselves adequately qualified, trained and supervised in such important work. That is an especially important consideration when very young, in-experienced people are employed as apprentices and trainees.
16 Here, the evidence does not permit the conclusion that the necessary training and supervision was given to Mr Abela or Mr Moore. As I have noted, the company's operating procedures, provided that 'equipment must not be running during maintenance operations'. As has so often been observed in the authorities, paper systems have their place, but it is only in the practical day-to-day implementation of those systems, by the people who have that responsibility, which will ensure that the obligations to ensure safety imposed by the Act, are in fact met. This, the defendants failed to ensure.
17 The deficiencies in the approach adopted by the defendants led to the most regrettable materialisation of the serious risks to safety to which Mr Moore, a 15 year old apprentice, was exposed, when cleaning an unguarded, moving conveyor. It is he who must now suffer the consequences of the defendants' failures.
18 There can be no question that simple steps were available to the defendants to remove those risks, by the proper guarding of the machine. Indeed, rather than modify the machine, after the accident the company purchased and installed other equipment which is guarded in accordance with the applicable Australian Standards. While this is a proper factor to take into account by way of mitigation, it also highlights the deficiencies of the approach adopted before these risks materialised.
19 All of these matters must be taken into account in considering the question of penalty. For the prosecution it was submitted that there was an aggravating matter which must also be taken into account, namely Mr Moore's age - he was under 15 years of age when he commenced employment with the company in October and 15 at the time of the accident, a month or so later. Given the provisions of s 21A(2) of the Crimes (Sentencing Procedure) Act, I am satisfied that this factor must be taken into account. The subsection provides:
2) Aggravating factors