20 The defendants were charged with multiple failures to ensure the safety of employees, particularly Mr Vili. Given the evidence that the key on the control panel controlling the photo guard was left permanently in position, the risk was that an operator or some other person would turn the key to the bypass position thereby exposing the operator to injury whilst operating the machine. This is what occurred. Having become trapped on a night shift Mr Vili was unable to reach the controls to free himself and spent a distressing, and no doubt painful, 43 minutes waiting to be freed. If he had not hit upon the idea of using water to set off an audible alarm, it is not known how long he may have remained trapped.
21 Leaving the key in position was an overwhelming temptation for employees to take short cuts and thereby place themselves in danger. When this is considered with the fact that Mr Vili worked alone without any means of freeing himself once trapped, or being able to raise the alarm, it created an extraordinarily grave risk.
22 To add to the gravity of it, the risk was plainly foreseeable if not blindingly obvious. That is, through carelessness, inadvertence or haste a person might turn the key to the bypass position and continue operating the machine. Employers have been warned time and time again, through decisions of this Court and its predecessors, that their obligations in respect of ensuring safety extends to the hasty, careless, inadvertent, inattentive, or unreasonable employee: Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman and Another [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248; WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 at 722. Further, that employers should be 'on the offensive to search for, detect and eliminate, so far as reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time at the workplace': WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85.
23 Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].
24 The injury caused to Mr Vili was not in the most serious category (cf Workcover Authority of New South Wales (Inspector Vosu) v Ace-Semi Trailer Sales Pty Ltd [2005] NSWIRComm 222; (2005) 145 IR 76 at [50]) and it is not clear on the evidence that it could have been more serious, but Mr Vili did receive a severe crush injury to his left arm and broken bones in the arm. As a result of the injuries Mr Vili lost the end of his first finger and thumb near the joints. The consequences of the breach indicate that the risk was serious enough to warrant a penalty at the lower end of the mid range.
25 The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited [1994] NSWIRC 11; Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275. In the present case, the available remedial step was one of the simplest imaginable: removal of the key.
26 Failure to ensure safety by the absence, or inadequate guarding, of machinery is a commonplace offence in this jurisdiction. For some recent examples see: Inspector Dugdale v Sara Lee Australia & NZ Pty Ltd [2009] NSWIRComm 133; Inspector Ian Batty v Brian John Goldsmith. Prosecution under s 8(1) by virtue of s 26(1) of the OHS Act 2000 [2009] NSWIRComm 72; Inspector Barry Sutcliffe v T & F All States Pty Ltd [2009] NSWIRComm 19; Inspector Robert Wilkie v YSF Pty Limited & Anor [2009] NSWIRComm 7; Inspector Ross Wolf v Rockdale Beef Pty Limited [2008] NSWIRComm 110; Inspector Wayne James v Chek Ly & Ors [2007] NSWIRComm 315; and Inspector Wayne James v Sunny Ngai & Ors [2007] NSWIRComm 203.
27 The incidence of guarding offences suggests that general deterrence should be a significant element of the penalty in this case. Moreover, the incident in this case demonstrates how easily it is to overlook an obvious danger: on its face, the machine was well guarded by a photo guard. But the guard could be turned on and off at will by any person. This kind of oversight, which is so easily done without sufficient thought for the consequences, needs to be brought to the attention of employers through the imposition of an appropriate penalty: see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388.
28 As for specific deterrence, the corporate defendant remains in business but it has disposed of the blow moulding machine. Mr Patel and Mr Baker remain active directors of the corporate defendant. Mr Weightman has retired from active employment with the company but he remains a director and attends at the plant from time to time and attends board meetings. The incident, I accept, had a profound effect on the directors and they sold the offending machine to avoid a repeat of what occurred. I do not propose to include in the penalty a significant element for specific deterrence because I do not believe the risk of re-offending is high.
29 Whilst I have been critical of the defendants' failure to ensure safety, and deservedly so, that does not translate into an offence of the most serious kind, attracting a penalty at the highest end of the scale. In considering the objective seriousness of the offence one must have regard to the fact that despite the failures the defendants did not ignore safety. The business had been operating for 22 years before the Vili incident occurred without coming to the notice of WorkCover; the machine had an appropriate photo guard in place; the corporate defendant had engaged a safety consultant in 2004; it had a written safety policy, maintained a hazard register, conducted risk assessments (but not an adequate one on the blow moulding machine) and operated a safety committee. Regrettably, however, in my assessment, the directors did not exercise sufficient due diligence to ensure the corporate defendant's safety policies and procedures were actually put into effect on the shopfloor to the necessary extent. What is more, the failure to conduct an adequate risk assessment of the blow moulding machine and the failure to provide adequate supervision, training, instruction and information to its employees working on or with the machine - measures which by now should be second nature to all employers conducting undertakings in this State - represented serious breakdowns in the management of occupational health and safety at the Minchinbury site.
30 Turing to the subjective factors, there was some disagreement between the parties about the timing of the guilty pleas and the discount that should be allowed in that respect. Mr O'Neil of counsel for the prosecutor noted that a discount of between 10 and 25 per cent was available for the utilitarian value of a guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; at [52]. Mr O'Neil noted what the Chief Justice said at [131]:
[131] Every part of the complex web of interconnected participants which comprises the criminal justice system will be improved if a greater number of early pleas could be achieved. The benefits include:
· Reduce congestion in court lists and permit courts to plan the use of limited resources without overlisting and avoiding the waste of trial court time.
· Reduce the waste of the limited resources available to the Director of Public Prosecutions, the Public Defender and legal aid, both by the direct saving of time spent on preparing cases that do not proceed and by the indirect saving of reducing the number of cases not reached due to overlisting.
· Reduce the waste of time of witnesses, amongst whom police constitute the largest single category, in preparing to give evidence and, in many cases, appearing on the day of trial.
· Reduce the waste of time of jurors who are needlessly assembled for trial.
31 Counsel also referred to R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [39] per Hulme J:
[39] That said, the 25% discount for the Respondent's plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.
[40] That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:-
If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.
This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.
32 More recently, the Court of Criminal Appeal in R v Robert Borkowski [2009] NSWCCA 102 felt it necessary to again set out the principles to be applied in relation to a discount for the utilitarian value of a guilty plea. At [32] Howie J, with whom McClellan CJ at CL and Simpson J agreed, stated:
[32] It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act: