Inspector Low v Capral Aluminium Ltd

PROSECUTOR: Mr J M Atkin of counsel Solicitor: Ms R Panagoda WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Solicitor: Mr J Robinson Harmers Workplace Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION CORAM: BOLAND J Date: 11 February 2002

Matter No IRC 4903 of 2000 INSPECTOR IAN LOW v CAPRAL ALUMINIUM LIMITED

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 This is a prosecution by Ian Low as an Inspector of the WorkCover Authority of New South Wales against Capral Aluminium Limited for a breach of s 16(1) of the Occupational Health and Safety Act 1983. The sub-section states: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

2 There had been a further prosecution of the defendant under s 15(1) of the Act (Matter No IRC00/4904), however the Court was informed that those proceedings were discontinued by consent with no order as to costs.

3 The charge against the defendant was in the following terms: On 8 October 1998, at Hart Road, Loxford in the State of New South Wales, the defendant DID FAIL to ensure that persons not in its employment, and in particular Keith Christopherson and Raymond McGuinness, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking at its place of work contrary to the provisions of Section 16(1) of the Occupational Health and Safety Act 1983.

5 The defendant had operated an aluminium smelter at Kurri Kurri in New South Wales. At the time of the incident that gave rise to the charge against the defendant (October 1998) the Kurri Kurri site employed approximately 653 employees and engaged 50 to 60 contractors per day. Since the incident Capral has sold the Kurri Kurri site operations to VAW Kurri Kurri Pty Limited.

6 According to an agreed statement of facts tendered in the proceedings the defendant operated an overhead travelling crane in one of three potrooms at the Kurri Kurri site. The crane had two underslung driver's cabins. Each cabin had, and continues to have, two isolation switches for electrical supply, namely the main isolation switch that isolates all power to the crane drives and effectively immobilises it, and an auxiliary services switch that isolates the auxiliary functions including lights, air conditioning, horn and radio.

7 Isolation requirements of the crane were contained in a Potroom Engineering Standard Practice issued on 1 June 1988. Regulations also governed the use of danger tags, out of service tags and caution tags. The Regulations provided that: Danger tags were to be used "whenever working on equipment where the operation of any switch, valve, etc, could cause personal injury"; "It is the responsibility of each person doing the work to place the Danger Tag on the isolating switch, valve, etc"; Where a contractor was working on equipment a "Capral representative will ensure that all positive isolation points are identified for the contractor and where practicable will supervise the isolation prior to any work commencing. The Capral representative will also place an Out of Service tag on the equipment prior to the contractor placing their Personal Danger Tag"; Out of service Tags are required to be used when "it can be foreseen that the use or operation of any equipment component or machinery, even though it is not faulty, could injure other persons or cause damage to other plant"; Equipment, machinery or components, which have an Out of Service Tag, shall not be used or operated.

8 The agreed statement of facts stated that: Shortly prior to the incident Capral made a decision to change the procedure so that: · Isolation of electrical hazards associated with exposed electrical conductors would only be performed by authorised Capral electrical personnel; and · That after isolating the equipment the electrician would test the isolation to prove it was safe then place an Out of Service Tag on the appropriate switches prior to other personnel fitting their Danger Tags and commencing work.

9 The defendant employed Darren Potts as a licensed electrician. Potts had undertaken relevant training required by the defendant including training in relation to Tag procedures, isolation procedures, electrical safety and Potroom maintenance operations. Potts was aware of the changes to isolation procedures for electrical hazards that required electrical personnel to isolate hazards, to test the equipment to prove it was safe and to fit an Out of Service Tag.

10 The defendant also employed Malcolm Brewer as a mechanical tradesperson level 3. Brewer had received training in relation to crane safety rules, Tag Regulations and Potroom electrical safety. As of 16 March 1998 all supervisors of contractors were required to complete the Contractor Induction Course. Brewer, however, did not complete the course.

11 In September 1998 Don Robertson, a maintenance planner employed by the defendant, conducted a site inspection with Peter Street, Contract Supervisor for Insulation Industries Pty Limited in relation to the task of installing insulation in the interiors of crane cabins in the Potroom. On 17 September 1998 Robertson filled out a portion of the Hazard Identification Checklist and the Manual Handling Checksheet so that Insulation Industries could prepare its own risk assessment.

12 On 18 September 1998 the defendant received a quotation from Insulation Industries for installing insulation in the cranes. The quote specified that electrical items would have to be removed by Capral electricians. Capral's Hazard Identification Checklist identified contact with 'live electrical parts' as a potential hazard. To control the hazard a work order was placed to 'remove electrics for Insulation Industries to fit insulation to walls and reconnect thereafter'.

13 On 1 October 1998 Robertson commenced annual leave and Brewer was assigned to relieve Robertson.

14 Keith Christopherson and Raymond McGuinness were employees of Insulation Industries and were selected to perform the insulation work on the cranes. In accordance with the defendant's requirements Christopherson and McGuinness were provided with relevant safety training to enable them to carry out their work safely. This included:

· General rules for working in the Potroom; · Potroom electrical safety, which included a video, shorting/earthing, start-up sirens, crossing under Potrooms, safety controller responsibilities; · Reinforcement of danger tag/out of service tag and caution tag regulations; and · Isolation of Capral equipment.

15 The agreed statement described the incident leading to the charge being laid against the defendant as follows: 44. On or about 7 October 1998 at 5.30am, Darren Potts removed the electrics in the Crane cabin to allow the Contractors to install the insulation. 45. When Darren Potts completed removing the electrics for the day on 7 October 1998 (ie: before7.30am), the eastern cabin of the Crane was stripped out. However, the ends of two red and black wires from a power point in the cabin were inappropriately left exposed. Darren Potts cut the ends to remove the exposed copper ends, however contrary to normal electrical procedures neither of the ends of those wires were taped or insulated, which Darren Potts, as a qualified electrician, knew was required. 46. Darren Potts left the main isolation switch and the auxiliary services switch in an open circuit position (ie: they were off). He placed an "Out of Service" tag on the main isolation switch. He did not leave a tag on the auxiliary services switch contrary to the requirements of Capral's Danger Tag, Out of Service Tag and Caution Tag Regulations. The effect of leaving the main isolation and auxiliary services switches in an open circuit position was to isolate the cabin of the Crane, so there was no electricity at all. 47. At approximately 8.30am Malcolm Brewer escorted the Contractors to the Crane. There was an Out of Service tag on the main isolation switch. Malcolm Brewer told the Contractors to each put a Danger Tag on the main isolation switch, which they did in accordance with proper procedure. The Contractors then commenced work on the Crane. 48. At the end of the shift, Malcolm Brewer told Darren Potts that the Contractors had finished and asked if he could remove the Out of Service tag and restore power. Darren Potts said that he could but if it was necessary to move the Crane, to do it from the west cabin and that there would be no access to auxiliary equipment. 49. On the morning of 8 October 1998, Malcolm Brewer again escorted the Contractors to the Crane to continue the insulation work in the east cabin. Keith Christopherson asked Malcolm Brewer to isolate the Crane. 50. The main isolation switch was on so Malcolm Brewer positioned the main isolation switch in an open circuit position (ie: turned it off). Malcolm Brewer was not aware that there were exposed electrical conductors in the Crane and did not get authorised Capral electrical personnel to isolate the wires. He did not replace the Out of Service tag on that switch, contrary to the Out of Service tag requirements. The Contractors then placed danger tags on the main isolation switch. The auxiliary services switch was not tagged and was in the closed circuit position (ie: turned on). 51. Later in the day, Ray McGuiness was working in the southeast corner of the cabin of the Crane and was placing a pop rivet into a hole in a sheet when he received a mild electric shock. Keith Christopherson was standing on a seat fitting a sheet to the ceiling and also received a mild electric shock. It is thought Keith Christopherson may have come into contact with Ray McGuiness and received a parallel shock. 52. The effect of the auxiliary services switch being in a closed circuit position (ie turned on) was that the electrical wires that had not been insulated the previous day were live despite the main isolation switch being in the open circuit position.

16 Christopherson and McGuinness reported the electric shock and as a standard precaution were taken to hospital. Neither person sustained any injury. An inspection and investigation of the incident followed.

17 The steps taken by Capral after the incident were as follows: 56. A number of actions were taken by Capral subsequent to the incident which included the following: (a) The site being made safe by switching the main auxiliary services switch off and taping the ends of the wires so they were insulated.

(b) The incident being immediately internally reported in accordance with Capral's normal procedures including completing the detailed Capral 'Reporting of Dangerous Occurrences' form and associated actions.

(c) Similar pieces of equipment being checked on the date of the incident for a similar potential risks (sic) in the north and south cranes and a temporary warning sign being applied to all cranes relating to their isolation.

(d) A memorandum being distributed on 9 October 1998 to ensure that all shift workers were made aware that electrical isolation of cranes required turning off the main isolator and the auxiliary services isolator.

(e) A preliminary investigation meeting being held on 9 October 1998 involving Robert Richards (Maintenance Engineer Potroom), Peter Wetzler (Potroom Maintenance Technician), Craig Cable (Acting Manager) and Lynn Hart.

(f) A further investigation meeting being held on 12 October 1998 involving Robert Richards, Peter Wetzler, Darren Potts, Malcolm Brewer, Jim Critchley, Peter Knott, Kevin Burgess, Craig Cable and Lynn Hart.

(g) A further major incident review meeting being held on 26 October 1998 involving Robert Richards, Peter Wetzler, Donald Robertson, Malcolm Brewer, Jim Critchley, Keith Christopherson, Raymond McGuiness, Kevin Burgess, Craig Cable, D Perry, G Challen (Potroom Safety Committee Chairperson) and Lynn Hart.

(h) Temporary and permanent signs being installed in the cranes warning users that both the main isolator and auxiliaries main isolator are required to be turned off for electrical isolation.

(i) A new Potroom Maintenance Current Best Practice for Line 1 Crane Isolation (PM01-0053) being developed as a revision of the Potroom Standard Engineering Practice for Line 1 Crane Isolation (2.3) of 1 June 1988 to include additional information regarding electrical isolation for cranes which became effective on 9 December 1998.

(j) Darren Potts being required to undergo refresher training in isolation procedures.

(k) CRIPT (Clear, Run, Isolate, Prove, Test) isolation procedure training being provided to all potroom maintenance staff (including Malcolm Brewer).

18 The agreed statement of facts indicated that the defendant cooperated fully and openly with WorkCover in its investigation of the incident. The statement also referred to Capral's commitment to safety, in particular: 57. Capral fully and openly co-operated with WorkCover without challenge regarding its investigation of the incident and made available all documentation and investigation reports without exception or hesitation to assist WorkCover's investigation. This is demonstrated by factors including: (a) approximately one hour after the incident WorkCover Inspector Terry Perkins, accompanied by Jim York (Site Safety Services), Lynn Hart and Malcolm Brewer to the incident scene; and (b) senior Capral staff including Trevor Coombe General Manager of Capral Smelter division, John Spinaze, Divisional Manager Potrooms and Rod Howard, Technical Services Manager, participating in detailed interviews conducted by Inspector Terry Perkins in relation to the incident. 58. Further, Capral management and staff have at all times displayed an open and constructive attitude in all dealings with the normal WorkCover Inspector for the Kurri Kurri Site (amongst others), Inspector Terry Perkins.

19 Reference was made in the agreed statement of facts to Capral's character as a corporate citizen including contributions to charitable appeals and institutions, research projects and general community projects.

The Verdict 20 After reviewing the agreed facts and in light of the charge and the particulars thereof, I am satisfied that the offence has been proven. The plea of guilty by the defendant was properly made and I will enter a verdict accordingly.

Evidence 21 I have already referred to the agreed statement of facts tendered by the parties. Other evidence tendered in the proceedings by the defendant included:

· A schedule showing the prior convictions of the defendant; · Two folders tendered by the defendant containing materials relevant to the issue of mitigation and a table that included a guide to such materials; · A report prepared for the defendant by Associate Professor Colin Grantham of the School of Electrical Engineering at the University of New South Wales; · A folder containing details of the defendant's antecedent convictions from 1973 to 30 October 2001; · A table showing the defendant's prior convictions in relation to the Kurri Kurri site and the conduct that was the subject of the conviction; · A table providing details of cases involving electric shock.

Submissions of the parties 22 Mr J M Atkin of counsel appeared for the prosecutor. Mr Atkin submitted that in light of the defendant's prior convictions the maximum penalty was $825,000 under the Act. Whilst Mr Atkin submitted that the nature and quality of the offence was serious and that the risk to health and safety was foreseeable, he acknowledged that there were several mitigating factors including that:

· The immediate cause of the incident appeared to have been that the general safety procedures adopted by the defendant were not followed by Darren Potts and Malcolm Brewer; · The visiting workers employed by Insulation Industries undertook a safety induction course prior to commencing work thereby contributing to an avoidance of more serious injury; · Immediate steps were taken by the defendant after the incident to overcome the risk to health and safety; · The defendant fully cooperated with WorkCover following the incident and made available all documentation and investigation reports relevant to the incident.

23 Mr M D Harmer, solicitor, appeared for the defendant. Mr Harmer's helpful and comprehensive submission may be summarised as follows:

· Relevant criteria in the assessment of the nature and quality of an offence included: o Whether there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible; o The gravity or otherwise of the potential risk to safety following from the specific failure to implement safety measures which constituted the breach; and o The related likelihood that the breach would, or would not, lead to serious consequences. · Darren Potts contributed significantly to the breakdown in safety by failing to exercise with diligence the skills and learning of his trade; by failing to comply with national standards associated with the performance of his trade; and by further failing to comply with specific Capral procedures. · The deficiencies in Capral's attention to safety on 8 October 1998 are demonstrated by the reasonable and practicable steps that Capral was able to implement, with the benefit of hindsight, subsequent to the incident. · In relation to the nature and quality of the offence it was submitted that: o The primary layers of the measures in place to ensure safety were those that Potts departed from; o The steps subsequently introduced by Capral to enhance safety, whilst reasonable and practicable prior to the offence, constitute the "outer layers" of the relevant safety system; o Whilst, prima facie, the risk of a potential electric shock is serious, the risk of potential electric shock would have been significantly reduced, if not eradicated, by Potts complying with straightforward procedures from which he departed; o In terms of assessing the foreseeability of injury, and the potential seriousness of that injury, and hence the gravity of the breaches constituted by the failure to put in place the additional measures that Capral did subsequently introduce, it is necessary to have regard to the fact that it was hardly foreseeable that a qualified electrician such as Potts would fail in the way he did; o Properly assessed, it was not foreseeable that the failure to have in place the measures subsequently introduced by Capral would have any significant likelihood of producing serious consequences; o The pre-existing safety system, including its reliance upon a qualified electrician and existing isolation procedures, addressed the major risk, but was undermined by individual non-compliance. · For the above reasons the nature and quality of the offence should be properly be assessed at the lower end of the range of potential breaches that may occur in relation to electrical isolation procedures and related signage, supervision and training. · The consequences of the incident would only be relevant if a serious injury had in fact been involved and then only for the purpose of illustrating the seriousness of the relevant risk, the gravity of the offence and the necessity for deterrence. The expert witness report of Associate Professor Grantham illustrates that there was a limited risk of injury involved in the relevant incident and further confirms the deficiencies in the conduct of Potts as an electrician in the circumstances. · Other information relevant to the assessment of the nature and quality of the offence included: o The two isolation switches in the cranes and the fact that there was a direct current (DC) electricity supply system; o The steps taken by Capral prior to the offence; o The training undertaken by Capral of employees and contractors in relation to safety; o The seriousness of the offence. · The subjective factors relevant to the assessment of penalty included the following: o The steps taken subsequent to the incident to remedy any deficiencies; o The provision of information to WorkCover regarding the incident; o Capral's proactive approach to WorkCover prior to the commencement of any prosecution; o The plea of guilty; o Cooperation with WorkCover; o The defendant's prior record; o The nature and size of the defendant's undertaking; o The defendant's character as a corporate citizen; o The defendant's ongoing commitment to occupational health and safety; o The defendant's assistance to the contractor employees; o the defendant's contrition and remorse. · The assessment of penalty.

Consideration 24 It was obvious from the evidence that the defendant took very seriously its responsibilities relating to occupational health and safety at the Kurri Kurri site and had implemented and refined over the years a comprehensive safety system. The incident that gave rise to the charge in these proceedings, however, revealed a deficiency in the system that created a risk to health and safety. The defendant acknowledged the deficiency by its plea of guilty and by the steps taken to remedy the deficiency. It falls to the Court to determine what sentence should be imposed on the defendant for its failure in this case to ensure the health and safety of persons other than its employees at the defendant's place of work.

25 The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. Subjective matters rank well behind considerations as to the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 472-475; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [53]; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd [No 2] (2000) 99 IR 163 at [22] and [23].

26 In considering the objective seriousness of the offence it is evident that Mr Potts contributed significantly to the breakdown in safety on 8 October 1998 by: · Creating an electrical hazard by failing to tape or insulate the cut ends of electrical wires contrary to what he knew was required as a qualified electrical tradesperson; · Failing to leave a tag on the auxiliary services switch when isolating the equipment contrary to Capral's Tag Regulations; · Failing to inform Malcolm Brewer that exposed wires were present in the cabin of the crane. 27 The risks created by Mr Potts were:

· a risk of electric shock; · that potential visual guidance via tagging was denied to the contractor employees in the allocation of their personal Danger tags and to Malcolm Brewer in his understanding of the isolation requirements; · a reduction in the likelihood that Malcolm Brewer would request that a qualified electrician undertake the isolation of the crane on 8 October 1998. 28 It cannot be said that Mr Potts' contribution to the risk to safety was the result of poor or inadequate training or instruction. The evidence shows that Mr Potts had served his apprenticeship with the defendant, became a licensed electrician and as at 8 October 1998 had been employed by the defendant for 12 years. Mr Potts had undertaken all of the relevant training provided by the defendant and was aware that isolation procedures for electrical hazards required electrical personnel to isolate hazards, to test the equipment to prove it was safe and to fit an Out of Service tag. 29 I observe that Mr Potts has been required to undergo refresher training in isolation procedures and has been counselled regarding the incident.

30 In addressing the nature and quality of the offence Mr Harmer described the steps taken by Capral after the incident to remedy the deficiencies in its safety system as the "outer layers" of the safety system. The primary layers were those departed from by Mr Potts. I accept Mr Harmer's description. I also accept his submission that although the risk of a potential electrical shock was serious, the risk would have been significantly reduced, if not eliminated, by Mr Potts complying with the procedures from which he departed.

31 As to the question of foreseeability, in my opinion the fact that a licensed and experienced electrician with the proper training and instruction would fail to implement all of the relevant safety measures in the manner described earlier in this judgment was not readily foreseeable.

32 That foregoing observation must, however, be balanced by the fact that the steps taken by Capral after the incident to remedy the deficiencies in its safety system were relatively straightforward measures. Whilst the actions taken by a defendant following an accident to remedy any deficiency in safety and to further protect employees are factors to be taken into account in favour of the defendant in assessing penalty, such actions may also demonstrate the flaws in the pre-existing system. In Kembla Coal and Coke Pty Ltd Walton J, Vice President said at 27: The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant, in my view, to assessing the seriousness of the offence in this case: see WorkCover Authority of New South Wales v ACI Operations Pty Limited (unreported, Schmidt J, CT93/1025, 25 February 1994). Whilst the response by the defendants after the accidents was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendants to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (at 21-22).

33 Another important factor to be taken into account in assessing the objective seriousness of the offence is that whilst the defendant did have extensive safety procedures and systems in place at the time of the incident in October 1998, and that this is a factor that is relevant to an assessment of the seriousness of the offence: Department of Mineral Resources (NSW) (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; McDonald's at 449, given the obligations imposed on employers by s 16(1), the laying down of safety procedures and the giving of instructions may not, in many cases, be adequate. In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 a Full Bench of the Commission in Court Session said: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." 16 Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)."

34 The prosecutor submitted that deterrence should feature in the assessment of any penalty. The issue of deterrence was considered at length by a Full Bench of the Commission in Court Session in Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; 99 IR 29. At pars 73,74, 75 and 77 the Full Bench said: 73 Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said: "the fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace."

74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

75 We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. … … Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.

35 In considering the question of deterrence in this matter I have had regard to the Full Bench decision in Capral. I take the view, however, that in respect of specific deterrence it should not figure prominently in any consideration of penalty in light of the extensive pre-existing safety arrangements and the measures subsequently undertaken in overcoming the deficiencies in the safety system.

36 There are a number of subjective factors relevant to the assessment of penalty. Firstly, the defendant entered a plea of guilty and whilst there was some dispute about whether or not the plea was entered early I accept that, in the circumstances, it was. I also observe the prosecution's acknowledgement of the fact that the defendant cooperated with WorkCover in the investigation of the incident.

37 Secondly, I take into account the steps taken by the defendant to remedy the deficiencies in its safety system and I have already described these steps. There is also the matter of Capral's character as a corporate citizen: WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Capral Aluminium Limited (1999) 90 IR 256 at 268 per Hungerford J.

38 There was extensive material produced by the defendant indicating its ongoing commitment to occupational health and safety and I do not believe there is any question about this. The defendant obviously takes its responsibility for safety very seriously. As Hungerford J observed in WorkCover v Capral at 264: It was clear that the defendant had and continues to have a very responsible attitude and concern for occupational health and safety issues.

and The prior convictions of the defendant seen in their context, satisfy me that as to the Kurri Kurri site the industrial safety record may fairly be described as good, although it is relevant to take into account (which I do) the less favourable record at the defendant's Granville plant.

39 It is appropriate, in assessing the prior record of a defendant, to have regard to the large number of employees and the nature of the work carried out by the defendant: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179 at par 47; WorkCover Authority of New South Wales (Inspector Piggott) v Capral Aluminium Ltd (unreported, Hill J, 29 July 1998 at 25).

40 Material was tendered both by the prosecutor and the defendant relating to the defendant's antecedents. That which more comprehensively deals with the defendant's convictions was a table tendered by the defendant and which is reproduced in Appendix A to this Judgment. The table shows that the defendant had 31 prior convictions for offences under the Act. Twenty-four of the offences were committed, and convictions were recorded in respect of them, prior to the offence that is the subject of these proceedings.

41 In Veen v The Queen [No 2] (1988) 164 CLR 465 the High Court dealt with the principles to be applied on sentencing in respect of prior offences. Mason CJ, Brennan, Dawson and Toohey JJ said at 477: There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

42 On the evidence in this case I find myself in respectful agreement with what Hill J said in WorkCover Authority of New South Wales v Capral Aluminium (29 July 1998) at 25: … this is clearly not a case where the history or record shows some "dangerous propensity" or " a need to impose condign punishment to deter the offender." I do not consider that the defendant has manifested a continuing attitude of disobedience to or lack of regard for its obligations under the Act. The evidence in fact shows, and I have in effect found, quite the contrary.

43 Appendix A also shows that the defendant has been convicted in relation to seven other offences (including two at the Kurri Kurri site) under the Act that were committed prior to the offence in question but in respect of which a conviction was not recorded until after the offence in question occurred. Mr Harmer submitted that these seven convictions may be taken into account in determining whether to withhold leniency but they are not to be taken into account for the purpose of increasing punishment. In doing so Mr Harmer relied on R v Boney (unreported, NSW Court of Criminal Appeal (Mahoney JA, Grove and Newman JJ), matter No. 60342 of 1991, 22 July 1991) and R v Hutchins (1957) 75 WN NSW 75.

44 In Boney, Grove J (with whom Mahoney JA and Newman J agreed), said: The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 T.R. 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant."

The same approach was manifested in this Court in Reg v Hutchins (1957) 75 WN NSW at 75 where Street CJ said: "I think it is clear that in sentencing the applicant in June, 1957, for a crime committed in September, 1954, his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates, and he was entitled to take them into account for the purpose of considering whether he should reduce what he would otherwise have regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth."

His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence.

45 In referring to the above cases Mr Harmer was seeking to have clarified the distinction between what he described as "prior convictions" and "interim convictions" in the context of Capral's antecedents and their implications for sentencing. He invited the Court to make an authoritative statement in this respect. As far as I can gather, the "prior convictions" that Mr Harmer referred to are those 24 convictions recorded prior to the offence that is the subject of these proceedings. The "interim convictions" are those seven convictions recorded after the offence in question.

46 This question of interim convictions has been touched upon in previous decisions of the Court. Mr Harmer referred to the decision of Schmidt J in WorkCover Authority of NSW (Inspector Piggot) v Capral Aluminium Limited (unreported, matter No. IRC 2265 of 1997, 14 May 1998) where her Honour said: The defendant's record is also to be taken into account. As to this point I accept that the proper approach to be adopted to a consideration of antecedents is that described by the Court of Criminal Appeal in Boney . I take the view however that the defendant's antecedents in this case are relevant in determining the leniency to be afforded to the defendant, given the fact that the offences all involved injuries received at work by employees to whom the defendant owed the identical duty under the Act as that which the defendant has admitted breaching in this instance. While the circumstances of each of the other accidents is different to that which arises for consideration in this case, it seems to me that the differences are not of such a kind that I should properly conclude that the antecedents should not be taken into account at all in the relevant way.

47 Mr Harmer submitted that in referring to the defendant's antecedents, Schmidt J had not distinguished between prior convictions and interim convictions and so her Honour's judgment in this respect was of limited assistance.

48 Mr Harmer also referred to the judgment of Hill J in WorkCover Authority of NSW v Capral Aluminium Limited (29 July 1998) where his Honour said: …it is incumbent upon me under the authorities to which I have referred, to have due regard to other offences committed by the defendant, more particularly perhaps the interim ones, including that which was the subject of conviction on 14 May 1998 in proceedings before Schmidt J. In that case, the defendant was convicted and fined $30,000 in relation to an accident on 4 September 1995, involving an employee being run over by a fork lift at the Granville premises. In the context of the objects of the Act it is appropriate to have regard to all offences which occurred after the offences in this case and to balance them against the mitigations or reductions of penalty which the defendant would otherwise merit. It is appropriate also to consider the antecedent convictions. In my opinion, however, this is clearly not a case where the history or record shows some "dangerous propensity" or "a need to impose condign punishment to deter the offender". I do not consider that the defendant has manifested a continuing attitude of disobedience to or lack of regard for its obligations under the Act. The evidence in fact shows, and I have in effect found, quite the contrary. When considering the application of the principles applicable to fixation of penalties under the Act including those laid down in Veen and in Boney and other relevant authorities, regard must be had to, inter alia, the absolute nature of the duty imposed by the statute, the nature and size of the defendant's various operations, and the objective evidence of its attitude and approach, both generally and in the particular case, to the fulfilment of its obligations under the Act. The defendant here is a large employer in heavy industry, with about 1700 - 1800 employees in New South Wales alone and carries on operations at four separate sites in the state and at about nine others in other states and territories. I should say that I am satisfied on the material before me that, the defendant is, in general, a good corporate citizen which takes seriously, and adopts practices and procedures designed to fulfil, its duties under the Act. Accordingly, having regard to the nature and quality of the offences in this case, the measure of culpability of the defendant, the principle of totality, and the various mitigating factors to which I have referred, and balancing against them the other offences of the defendant having regard to their nature and quality, I consider that an appropriate penalty in respect of both offences, is the sum of $25,000.

49 Again, Mr Harmer submitted that whilst Hill J had gone some way towards distinguishing between prior convictions and interim convictions, there was a need to clarify the distinction insofar as their relevance to sentencing was concerned.

50 It is clear that what Mr Harmer was contending was that the seven convictions recorded against the defendant after the offence that is the subject of these proceedings should only be considered for the purpose of deciding whether any leniency that might otherwise have been afforded to the defendant is to be forfeited and not for the purpose of inflicting greater punishment than the offence would warrant. However, if I were to accept that contention it seems to me that it could give rise to an inconsistency with s 51A of the Act. That section provides: 51A. Additional penalty for further offence against the Act (1) A Court that convicts a person of an offence (the "current offence") against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act---2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act---50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

51 The inconsistency - or potential inconsistency - that I have in mind may be illustrated in the following way: Assume that a defendant commits a first offence under the Act in October 1998 and the offence comes before the court for sentencing in December 2001. In between those times the defendant commits other offences and in respect of each of them a conviction is recorded. Having regard to the previous convictions the court may, pursuant to s 51A, impose an additional penalty for the offence committed in October 1998. On Mr Harmer's proposition, however, these previous convictions would be regarded as "interim convictions" to be considered only for the purpose of withholding leniency and not for the purpose of imposing additional punishment. Therefore, it would seem to follow from Mr Harmer's submission that the "interim convictions" could not be regarded as previous convictions for the purpose of s 51A.

52 It is difficult to express any concluded view about this issue because I have not had the benefit of hearing argument, but on the face of it the principle enunciated in Boney has the potential to clash with s 51A of the Act. My tentative view is that Boney does not apply to offences under the Act. In this regard I also note the observation of Hill J in Capral (29 July 1998) that "… offences under the Act do not require any mens rea or element of fault."

53 In any event the history of the defendant shows that, as well as convictions recorded after the offence in question occurred, there were a number of convictions recorded against it prior to the offence occurring. Thus, even without taking the seven "interim convictions" into account, the 24 "prior convictions" mean that the maximum penalty under the Act is $825,000.

54 The approach I have taken to sentencing in this case is that articulated by Kirby P in Camilleri's Stockfeeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698-699, namely: 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence: R v H (1980) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see also the comments of the Hon T.J. Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, "that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category": Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. 3. The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender. In this process, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict of fact in favour of the offender: see R v O'Neil (at 588). 4. While the offender can only be sentenced for the offence for which it has been convicted, the court is "bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict": R v De Simoni (1981) 147 CLR 383 at 396. Such an approach is consistent with the Court's proper evaluation of an offender's antecedent history where it does not lead to the imposition of a penalty disproportionate to the gravity of the particular offence(s) charged: see Veen v The Queen [No 2] (at 477).

55 I have also had particular regard to the decision of Hungerford J in Fisher v Samaras Industries Pty Ltd where his Honour said at 388: …the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high.

56 In considering a just and appropriate penalty in this case I have considered the objective seriousness of the offence as well as subjective factors including the steps taken by the defendant to remedy the deficiencies in its system of health and safety thrown up by the incident giving rise to these proceedings, cooperation with WorkCover, the utilitarian value of an early plea of guilty, the defendant's previous record including what Mr Harmer described as prior and interim convictions, the nature and size of the defendant's undertaking, the defendant's character as a corporate citizen, the expression of contrition and the defendant's ongoing commitment to occupational health and safety.

57 Given these objective and subjective factors, and the approach to sentencing referred to in Camilleri Stockfeeds and Fisher v Samaras Industries Pty Ltd, the appropriate penalty in this case lies in the low range. I have considered what the penalty should be within this range and whether I take the view in this case that there is no distinction to be drawn between prior and interim convictions or whether I take the view that I should only consider the interim convictions for the purpose of withholding leniency, it makes no material difference to my assessment of what the penalty should be within the range I consider to be appropriate. I consider an appropriate penalty to be $30,000.

Orders 58 The Court makes the following orders: 1) The offence is proven and a verdict of guilty entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $30,000 with a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs as agreed, or in default of agreement, as assessed.

1 APPENDIX A CAPRAL ALUMINIUM LTD ANTECEDENT CONVICTIONS AS AT 30 OCTOBER 2001 Conviction Date Type of Incident Date of Incident Section of Act Fine Location of Incident 1 26.2.73 Burns to right foot 25.5.72 S&LA $20 Kurri Kurri s 17(3)(a) 2 27.5.85 Injury to finger 19.1.84 FSIA s 27(1) $700 Kurri Kurri 3 2.12.85 Not known Not known OHSA s 15(1) $1,000 Kurri Kurri 4 24.11.86 Not known Not known OHSA s 16(1) $800 Not known 5 27.7.87 Fractured leg 23.1.85 OHSA s 15(1) $1,500 Kurri Kurri 6 23.11.87 Damage to lifting gear 1.8.85 CSA s 17(3) $500 Kurri Kurri 7 19.10.88 Injury to fingers 22.5.87 FSIA s 27(1) $1,000 Cabramatta 8 19.10.88 Injuries to hands and finger 16.9.86 FSIA s 27(1) $1,500 Granville 9 21.1.90 Injury to finger 11.1.88 FSIA s 27(1) $1,500 Granville 10 29.1.90 Injury to fingers 21.1.88 FSIA s 27(1) $2,000 Granville 11 22.8.90 Injury to finger 23.2.89 FSIA s 27(1) $1,500 Cabramatta 12 5.11.90 Fractured ribs and scapula, 6.12.90 OHSA s 15(1) $2,500 Kurri Kurri Lacerations to back 13 9.7.93 Concussion and fractured ribs 14.7.92 OHSA s 15(1) $2,500 Kurri Kurri 14 14.11.95 Injury to fingers 26.11.94 OHSA s 15(1) $3,000 Cabramatta 15 21.3.96 Injury to fingers 20.3.95 OHSA s 15(1) $4,000 Giraween 16 4.11.96 Fall into pit 20.4.94 OHSA s 15(1) $4,000 Granville 17 18.2.97 Injury to fingers 14.9.95 FSIA s 27(1) $4,500 Giraween 18 11.3.97 Electric shock 3.12.94 OHSA s 15(1) $5,000 Granville 19 9.10.97 Fall into pit 10.1.95 OHSA s 16(1) $7,500 Granville 20 12.2.98 Forklift overturned 16.2.96 OHSA s 15(1) $20,000 Granville 21 15.5.98 Fractures and internal injuries 4.9.95 OHSA s 15(1) $30,000 Granville 22 15.5.98 Broken trailer hitch 4.2.96 OHSA s 15(1) $6,000 total, Kurri Kurri $2,000 each charge 23 29.7.98 Burn injuries 19.9.94 OHSA s 15(1) $25,000 Granville 24 5.8.98 Failure to maintain electric 28.6.95 OHSA s 15(1) $40,000 Granville overhead crane. No injury sustained 25 9.12.98 Internal injuries 22.11.96 OHSA s 15(1) $12,500 Granville 26 23.2.99 Emission of vapours from degreasing tank 5.8.94 OHSA s 15(1) $20,000 Granville 27 & 28 9.4.99 Failure to provide protective equipment against explosion of molten aluminium 11.3.97 OHSA s 15(1) $150,000 Kurri Kurri 29 25.8.00 Top of middle finger and ring finger severed above the first knuckle 15.7.97 OHSA s 15(1) $22,500 Granville 30 30.1.01 Crush injury to hand and wrist 28.7.98 OHSA s 16 $25,000 Granville 31 8.3.01 Burns and ulcerations to oesophagus and throat from exposure to mixed gases 7.10.97 OHSA s 15(1) $200,000 Kurri Kurri

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