Inspector Kenneth Kumar v Soars and Anor

PARTIES: Matter Number IRC 4855 of 2005 ______________________________

INSPECTOR KENNETH KUMAR Prosecutor

AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED (ABN 42 001 749 980) Defendant

CATCHWORDS: Occupational Health and Safety - prosecutions under section 8(1) and section 26(1) of the Occupational Health and Safety Act 2000 - landscape contractors' business and suppliers of horticultural products - serious injury - pleas entered - aggravating factors - application under section 10 of the Crimes (Sentencing Procedure) Act 1999 - consideration of discharge - discharge not granted - penalties imposed - costs

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

Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 CASES CITED: Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Criminal Law Practice Legal Group WorkCover Authority LEGAL REPRESENTATIVES:

DEFENDANTS: Mr A Moses of counsel SOLICITORS: Moray & Agnew

Prosecution under sections 8(1) and 26(1) of the Occupational Health and Safety Act 2000

INSPECTOR KENNETH KUMAR v AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

1 On 19 November 2003, Robert Moore, a 15 year old apprentice employed by Australian Native Landscapes Pty Limited at a green waste recycling facility at North Ryde, had his right arm severed from the shoulder, while attempting to clean a moving conveyor with a broom brush. Patrick Noel Soars was a director of the company. The two defendants pleaded guilty to the offences with which they were each charged under the Occupational Health and Safety Act 2000 ('the Act'). This judgment deals with the question of penalty. 2 The two offences to which the pleas were entered were: MATTER NUMBER IRC 4854 OF 2005 FAILED TO ensure the health, safety and welfare at work of all its employees, and in particular, Robert Moore. The particulars of the charge are:

a) The corporation failed to properly and securely guard the conveyors used by its employees as to prevent contact by those persons with the dangerous parts of the conveyors;

b) The corporation failed to provide and maintain a safe system of work or work procedure in relation to the cleaning and maintenance of conveyors;

c) The corporation failed to provide adequate training, instruction, information, supervision and warnings to its employees working on or with conveyors;

d) The corporation failed to properly implement such measures as were identified by a risk assessment as were necessary to eliminate the risks associated by employees working on or with conveyors.

e) As a result of the corporation's failures Robert Moore and other employees were placed at risk of injury. MATTER NUMBER IRC 4855 OF 2005

ensure the health, safety and welfare at work of all its employees and in particular, Robert Moore, contrary to Section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are that the defendant:

a) Failed to properly and securely guard the conveyors used by its employees as to prevent contact by those persons with the dangerous parts of the conveyors;

b) Failed to provide and maintain a safe system of work or work procedure in relation to the cleaning and maintenance of conveyors;

c) Failed to provide adequate training, instruction, information, supervision and warnings to its employees working on or with conveyors;

d) Failed to properly implement such measures as were identified by a risk assessment as were necessary to eliminate the risks associated by employees working on or with conveyors;

e) As a result of the defendant's failures Robert Moore and other employees were placed at risk of injury. 3 The defendants have no previous convictions under the relevant legislation, although in 1995 the company was dealt with under s 556A of the Crimes Act 1900. Accordingly, the maximum penalties in these cases are $550,000 for the company and $55,000 for Mr Soars. An agreed statement of facts was tendered and evidence was given by Mr Soars. The statement provided, relevantly:

At all material times, Inspector Kenneth Kumar of the WorkCover Authority of New South Wales, Level 3, 92 - 100 Donnison Street, Gosford in the State of New South Wales was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 of the said Act to institute proceedings in the within matter.

At all material times AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED [ABN No: 42 001 749 980] was a corporation whose registered office is situated at 317 Mona Vale Road, Terry Hills, in the State of New South Wales ("the first defendant").

At all material times PATRICK NOEL SOARS of 144 Prince Alfred Parade, Newport, in the State of New South Wales ("the second defendant") was a director and managing director of the first defendant.

At all material times the first defendant was a corporation which undertook the business of landscape contractors and suppliers of horticultural products.

At all material times the first defendant was an employer.

At all material times the first defendant undertook the business of green waste recycling at the Green Waste Recycling Facility at Wicks Road, North Ryde, in the State of New South Wales ("the premises").

The premises were owned by Ryde City Council and leased to Waste Recycling and Process Corporation ("Waste Service NSW"). Waste Service NSW granted a licence to the first defendant to occupy the premises. The premises were part of a larger complex known as the Ryde Transfer Station Complex.

The first defendant operated its green waste recycling facility at the premises pursuant to a contract that it holds with Waste Service NSW, being contract no. 02-OP-08. Under the contract the first defendant is required to provide all equipment, services and personnel required for the safe and efficient operation of the site.

On 19 November 2003 the first defendant employed Robert Moore as a trainee. Robert Moore was 15 years old on 19 November 2003. Robert Moore commenced employment with the first defendant on 9 October 2003 when he was 14 years and 11 months old. Robert Moore's duties included undertaking work associated with the cleaning of conveyors that were installed at the site. Robert Moore was to commence TAFE in January 2004 as part of an apprenticeship.

On 19 November 2003 the first defendant employed Eden Abela ("Mr Abela") as manager of the premises. At the time of the incident on 19 November 2003 Mr Abela had been employed by the first defendant for approximately three years. Mr Abela's duties included managing the recycling process with green waste, managing 5 employees employed in the facility and managing maintenance and servicing of the green waste grinder, conveyors and loaders.

On 19 November 2003, Robert Moore and Mr Abela, were engaged in cleaning the conveyors installed in the green waste recycling facility at the premises. The cleaning process involved removing bulking agent (mulch) from in and around the conveyor rollers by shovel and hand.

Robert Moore and Mr Abela cleaned the first incline conveyor, which was located inside a container. To clean this conveyor they removed the rear guard and cleaned both sides of the roller by hand. The first incline conveyor was cleaned without incident and Robert Moore and Mr Abela then proceeded to the second conveyor.

When Mr Abela and Robert Moore approached the second conveyor (stacker conveyor) they noticed that it was blocked with bulking agents (mulch). They removed the mulch with their hands from the sides and back of the roller. They then started the conveyor to check the alignment of the conveyor belt. They noticed that the dirt was getting trapped between the roller and the belt. Mr Abela provided Robert Moore with a broom brush to clean the roller. Robert Moore put the end of the broom inside the conveyor to clean it and it became caught under the roller. The conveyor was running at the time. Robert Moore tried to pull the broom brush out. His arm was then drawn into the moving roller, ultimately severing his right arm from the shoulder.

Mr Abela and Matthew Spark, another employee of the first defendant, went to Robert Moore's assistance. Mr Abela rang for an ambulance and they held rags to Robert Moore's shoulder until the Ambulance Service arrived, followed by Police and Fire Rescue Service. Subsequent to the rescue services arriving Mr Abela assisted them in retrieving Robert Moore's arm by cutting the belt of the conveyor to release the arm.

As a result of the incident on 19 November 2003 Robert Moore's right arm was amputated from the shoulder blade. Robert Moore has not returned to work with the first defendant.

On 19 November 2003 Inspector Kumar attended the defendant's premises and carried out an inspection and took photographs. Inspector Kumar's inspection revealed:

a) One 40-foot and one 20-foot shipping containers placed in tandem and two other 40 foot and 20 foot sea containers stacked on top of these, three high. At the east side of the containers was a machine mounted on a wheeled trailer. This was identified as the grinder/mulcher. Next to the mulcher was an excavator with grab attachment.

b) A stockpile of green waste was located in this area adjacent to the excavator. The grinder/mulcher was not in operation at the time of inspection.

c) At the discharge end of the grinder was located a conveyor that took materials (mulch) from the grinder to a receiver hopper that shook out the material. The material then went on to the transfer conveyor inside the lowest shipping container to be moved to the stockpile conveyor that was located on the western side of the containers. This conveyor raised the material out of the area and stockpiled it in an adjacent area.

d) At the lower end of the stacker conveyor the pulley (tail pulley) had been removed from its bearing mountings and the rubber conveyor belt had been cut.

e) The pulley was approximately 1100mm in length and 300mm in diameter.

f) There was also evident of waste material build up under the pulley. The waste build up was such that it partially covered the pulley bearing mountings.

g) Wire mesh (50mm X 50mm) guards, 1.450m long, 600mm wide on each side of the steel frame of the stacker conveyor were observed to have been bent backward.

h) The stacker conveyor was 1.330m wide and approximately 15m long with the discharge end raised approximately 6m above the ground. It was located on a concrete pad adjacent to the 40-foot container. The stacker conveyor was designed with the capacity to slew to left and right.

i) Approximately 5m from the left of the bottom 40-foot container, a section approximately 5m by 2.2m was cut out through which the inclined extended over the stacker conveyor.

j) The 40 foot shipping container was 400mm above the concrete pad on which the stacker conveyor was located.

k) The drive pulley for the incline conveyor inside the shipping container was 1.8m above the (container) floor.

l) The incline conveyor discharged into a hopper arrangement located over the stacker/incline conveyor.

m) The gap/opening between the lower pulley of the incline conveyor and the shipping container floor was 540mm.

n) The conveyor belt, approximately 1.010m wide and 8mm in thickness, of the stacker conveyor was cut and the lower section pulled back.

o) The drive pulley for the stacker conveyor was located at the discharge end with chain and sprocket drive. This was raised above ground level some 6 metres, and considered safe by position.

p) The lower end of the stacker conveyor was located outside the 40-foot container, inside which was the horizontal conveyor.

q) There were no identifying marks on the conveyors.

r) To the right of the 40 foot shipping container was located the electrical control switches for the incline and stacker conveyors. It was approximately 2.5m from the stacker conveyor and 1.6m above the ground.

s) The electrical control switches located on the panel were for slew motor, incline and stacker (label missing), key operated lock out and mushroom head lock down type emergency switch.

Robert Moore's training to clean the conveyors consisted of watching Mr Abela and Mr Spark clean them. He stated he was shown to bring his hand across the roller to remove the dirt while the conveyor was running. He had used this method on the incline conveyor, maybe once a week since commencing his employment. Whilst Robert Moore had cleaned around the stacker conveyor, he had not cleaned the stacker conveyor roller prior to 19 November 2003. Robert Moore was not trained or warned of the dangers of working around the conveyors, besides being advised to "watch out and be careful".

Neither Mr Abela nor Mr Spark had received any formal information, instruction or training from the first defendant in relation to cleaning the conveyors.

The first defendant's employee induction manual and OHS site safety plan and procedures document did not contain reference to conveyors. These documents had not been provided to Robert Moore, Mr Abela or Mr Spark prior to the incident on 19 November 2003.

The first defendant did not have a written procedure in place for the cleaning of the conveyors. The conveyors were cleaned approximately two or three times a week.

The guards installed on the conveyor were not designed to prevent access to in-running nips between the pulley and the flat conveyor belt. The guard installed consisted of 50mm square wire mesh, tack welded to the conveyor frame, on each side of the lower pulley.

The installation of the conveyor system at the premises did not meet the requirements of the Australian Standard 1755 - 2000, Conveyors - Safety requirements, particularly with regards to guarding the rollers of the conveyor. Other guarding deficiencies observed during WorkCover's investigation of the incident were inadequate guarding of the chain and sprocket drives for the conveyors.

The first defendant carried out a risk assessment of the premises which was completed on 27 July 2003. This was conducted by the first defendant's personnel, David Newell and John Kril. A meeting was held between the first defendant and Waste Services NSW's representatives on 19 August 2003 to discuss the risk assessment. As a result of issues raised at the meeting the first defendant's staff prepared a revised risk assessment dated 8 September 2003. No Australian Standards were referred to in the risk assessment process and the risk assessments did not consider compliance with AS 1755:2000 - Conveyors, Safety Requirements.

The risk assessments identified risks associated with transfer conveyor and stockpile conveyor including the risk of personal injury/entrapment, various measures were recommended to address the risks including; "guarding to all moving parts", "Isolator switches" and "fit guarding to all exposed roller ways and conveyors".

In addition to the above, the risks associated with operator competencies were identified in the risk assessments, including the "risk associated with unfamiliarity of equipment operation". It was recommended this issue be addressed procedurally by "induction, training - plant specific procedures manual".

The first defendant did not take any appropriate steps or action in relation to the risks identified in the risk assessments. Nor did it implement any strategies that were available to it so as to eliminate the risk of a persons limbs being drawn into the conveyor whilst it was operating prior to 19 November 2003.

The first defendant indicated by correspondence dated 17 December 2003 to WorkCover the action they proposed to take to manage the risks exposed in the operation of the conveyor system in the green waste processing facility. They proposed to "secure fencing of the area to a minimum height of 2.5 metres". 3 access doors allowing keyed entry via proximity switch which would automatically shut down the entire power system to the conveyor system."

On 15 June 2004 Inspector Kumar attended the premises and observed that the proposed changes were not instituted. On this occasion the conveyor system was not in operation. The second defendant advised WorkCover that the first defendant has discontinued the use of the conveyor system.

4 The case advanced by Mr Reitano of counsel, for the prosecutor, was that these were serious offences calling for the imposition of high range penalties. The risks which had materialised were obvious and foreseeable, having been identified in risk assessments conducted beforehand. Simple remedial steps were available to preclude those risks. The consequences of their materialisation were extreme. Mr Moore's age was also an aggravating factor, necessary to be taken into account in determining penalty. 5 Various relevant subjective factors were acknowledged, although it was submitted that while this was an early plea, the plea had not been entered at the earliest possible time, it was entered at the fourth mention. As to the application for the discharge of Mr Soars, it was submitted that the application would be refused, given the evidence, which showed that this was not a case where the discretion was properly available to be exercised. Nothing took this case out of the ordinary, so as to warrant the discharge sought. (See WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty ltd (2000) 100 IR 64.) 6 The case advanced by Mr Moses of counsel, for the defendants, was that the offences were not as serious as had been submitted for the prosecutor. It was accepted that the pleas had been properly entered, given the deficiencies in the approach adopted, which the defendants had acted to rectify. It was not, however, foreseeable that the supervisor responsible for the site would depart from the applicable procedures in the way which here occurred. It was also relevant that the machine was guarded, albeit it was accepted, not adequately. The defendants' deep regret and contrition for what had occurred was emphasised. 7 As to Mr Soars, it was submitted that prosecution of a managing director in a position such as his, was rare. This was relevant to the question of penalty. He was not responsible for the day to day supervision of the site. The evidence of contrition and assistance to Mr Moore, as well as the consequences of a conviction, made this an appropriate case for the exercise of the discretion provided by s 10. Consideration

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

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. 20 Also to be given consideration is the need for deterrence. I am satisfied in the circumstances of this case, that both general and specific deterrence have a role to play in the penalty imposed, given the nature of the risk here in question. 21 The evidence was that Mr Soars had established the company's business in 1971. It has grown in that time to one which employs over 250 employees. In 35 years, Mr Soars estimated he has trained some 700 - 800 trainees and apprentices. The company now has a turnover of over $42 million and is involved in high profile projects such as the Chinese Garden at Darling Harbour and the landscaping of Circular Quay. The company has 14 operations in Victoria and New South Wales, including retail outlets, composting and recycling facilities and a wholesale nursery. Mr Soars is the company's managing director. It remains a family company. 22 Undoubtedly, the defendants' records in that context were very good, a matter also relevant to be taken into account in determining penalty. Nevertheless, given the very serious nature of this offence, I am satisfied that deterrence must feature in the penalty imposed, given both the industry in which the defendants operate and their own position within it. 23 The evidence of the defendants' approach to their safety obligations, both before and after the materialisation of the risk here in question, make that conclusion unavoidable. As the prosecutor accepted, there was evidence that after the accident, the defendant revisited its obligations under the Act; as well as replacing this conveyor, it checked that guarding on all its conveyors satisfied Australian standards; it implemented a lockout system to overcome tampering with machine guards; it increased the emphasis on safety and operational training for employees and re-educated site and upper managers in the importance of safety. The prosecutor was critical of the attention paid by the defendants to risk assessment, in their safety procedures. As I noted, improved proper safety systems are important. It is in their implementation, however, that the defendants will ensure that their obligations under the Act are met. The company has now employed a permanent safety manager. 24 In his evidence, Mr Soars was critical of Mr Abela's approach to the safe conduct of the maintenance operation which led to Mr Moore's injury. He suggested that it was Mr Abela who had bent back the guard on the machine and noting a conflict in statements given to the investigators by Mr Abela and Mr Moore, as to whether or not Mr Abela had instructed Mr Moore to clean the conveyor while it was operating. Nevertheless, it was an agreed fact that this was not the first occasion that Mr Moore had cleaned a running conveyor. Mr Moore had performed such work once a week since commencing his employment. 25 Given the evidence of Mr Abela's background, his responsibilities and the training and instruction he had been given in the work he was employed to perform, there can be no doubt that any inadequacy in the approach he adopted to cleaning the rollers, was not only reflective of his own approach, but also the inadequacy in the approach adopted by the defendants to Mr Abela's instruction and supervision. Also necessary to be considered is that the materialisation of the risk was possible because of the inadequacy of the guarding of this machine, the risks posed by those guards having been identified in the risk assessments conducted, but still not properly attended to. These considerations properly lead to the conclusion that specific deterrence must form a part of the sentence here imposed. 26 Also to be weighed, however, are the subjective matters relevant to penalty. While these pleas were not entered at the very earliest opportunity available, it was undoubted that they were entered early. It was also acknowledged by the prosecutor that the defendants provided the investigating authority with considerable co-operation. Also of relevance are the defendants' records. As I have noted, they have undoubtedly been good industrial citizens in the past. The fact that the company was not one which had paid no attention to safety and that significant steps were taken after this accident, at considerable cost, to address the deficiencies which the accident had highlighted, are also relevant to be taken into account. 27 There can also be no doubt of these defendants' real and tangible contrition and remorse for what occurred. The evidence as to the continuing assistance being given to Mr Moore is exemplary. Mr Soars has been in continuing contact with Mr Moore and his family. After the accident Mr Moore was provided with a mobile phone and his wages have continued being paid by the defendants, not by an insurer. The defendants hope that Mr Moore's rehabilitation will continue to the point where he can take up employment in alternative positions which the company continues to offer. I have taken all of these matters into account in a positive way in fixing penalty.

Application under s 10 of the Crimes (Sentencing Procedure) Act 1999. 28 An application was made by Mr Soars under s 10 of the Crimes (Sentencing Procedure) Act. Orders were sought discharging him without conviction and penalty, subject to him entering into a bond for a period of 12 months, or some longer period determined by the Court. 29 Reliance was placed on the evidence as to the subjective features of the case; the fact that this is a family company; that Mr Soars was the managing director of the company, with a demonstrated commitment to safety; that he was not present when the incident occurred, at a site at which he did not perform any work. Mr Soars' evidence as to the considerable personal and professional consequences of a conviction were also relied upon. 30 As to the latter, the evidence was that Mr Soars is required to travel to the United States for his work and that a conviction will mean that he will have to apply for a visa to visit the United States, which will carefully consider whether or not a visa should be granted. Mr Soars also gave evidence of the personal pain which a conviction would bring with it, because of the shame to his family name. Various references attesting to Mr Soars strong involvement in community and charitable works such as the Telstra Child Flight, of which he is currently President, were also relied upon. 31 Section 10 of the Crimes (Sentencing Procedure) Act provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 32 I have given very serious consideration to the discharge of Mr Soars without conviction. In support of the application Mr Moses argued that it was very unusual for a managing director such as Mr Soars to be prosecuted by the WorkCover Authority. In opposition to the application Mr Reitano pointed to the serious nature of the offence and the little evidence said to be relevant to the application, namely a risk that Mr Soars might have difficulty in travelling to the United States. 33 For myself, I took the view that the most compelling factors in favour of the grant of the application were the defendants good records over many years and the extraordinary lengths to which the defendants have gone to assist Mr Moore. That assistance, given to someone of Mr Moore's extreme youth in the hope that he can be rehabilitated, are very much to be commended and encouraged. I have also given this significant weight in considering mitigating factors in determining penalty. What, however, weighed against the grant of the application under s 10, was the serious nature of this offence and Mr Soars' involvement in it. He was not a managing director remote from the actual failures here in question. On his own evidence, he was directly involved in Mr Abela's inadequate training as to the work he was to perform and matters of safety. This, no doubt, explains Mr Soars' feelings of personal responsibility for what happened to Mr Moore. 34 Section 10(2) focuses on whether it would be 'inexpedient to inflict any punishment' on Mr Soars on the one hand and 'expedient' to release him on a good behaviour bond, on the other. These are not defined terms. They take their ordinary meaning, being defined in The Macquarie Dictionary, Second Edition, as:

expedient - 1 . tending to promote some proposed or desired object; fit or suitable for the purpose; proper in the circumstances: 2 . conducive to advantage or interest, as proposed to right. 3 . acting in accordance with expediency. 4 . a means to an end. 5 . a means devised or employed in an exigency; a resource; a shift:

inexpedient - not expedient; not suitable, judicious, or advisable.

35 Section 10(3) emphasises that the factors to be taken into account in determining whether particular punishment is expedient or inexpedient, are Mr Soars' character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed and any other matter that the Court thinks proper to consider. 36 Undoubtedly Mr Soars' character, antecedents and mental condition, in terms of his real and substantial contrition, his record and his general good character as supportive references which I have mentioned demonstrated, are matters which would tend to lead to discharge. However, the evidence also shows that the nature of the offence here in question was not trivial, particularly given Mr Soars' personal involvement in safety at the site. Contrary to the submission advanced, it was apparent on the evidence that as managing director, Mr Soars did perform work at this site, when he was involved in Mr Abela's induction at the outset of Mr Abela's employment and subsequently, when at the site discussing issues of maintenance and site safety operations with Mr Abela on three separate occasions. 37 Nor can I conclude that there were extenuating circumstances in which this offence was committed, which could properly lead to the exercise of the discretion, given that the risk which here materialised was not only foreseeable, but foreseen in the risk assessments undertaken. Despite this, those risks were not properly addressed. 38 I am satisfied that the consequences for the company's business, were Mr Soars to be refused a visa to travel to the United States, is also a matter of which account might properly be taken in considering this application. Nevertheless, what the real consequences of conviction would be was unclear on the evidence. The fact that a conviction would lead to the necessity to apply for a visa was no doubt inconvenient, but the evidence did not establish that a refusal of a visa to travel to the United States, would result. 39 In all of those circumstances, I have been unable to reach the conclusion that a proper exercise of the discretion would be to grant the discharge sought. 40 For those reasons, I decline to exercise the discretion provided by s 10 in Mr Soars' favour.

Penalties 41 Having weighed all of the matters earlier mentioned, I have concluded that the appropriate penalty for the company is $125,400 and Mr Soars $12,540. In terms of culpability, on the evidence I take the view that both defendants were equally culpable for what occurred. 42 In coming to those figures, I note that I adopted the approach discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]. I here concluded that a discount of 24% for utilitarian savings achieved by the acknowledged entry of early pleas, albeit not entered at the very earliest opportunity, was an appropriate discount on the penalties which I had otherwise determined were appropriate in all the circumstances of each case. Orders

43 For the reasons given, I find the defendants guilty of the charges to which the pleas were entered and enter convictions accordingly. Australian Native Landscapes Pty Limited is ordered to pay a penalty of $125,400 with a moiety to the prosecutor and Mr Soars is ordered to pay a penalty of $12,540, also with a moiety to the prosecutor. The defendants are also ordered to pay the prosecutors costs as agreed, or in the absence of agreement, as assessed by the Court. The parties have liberty to approach in that respect.

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