Track Safety Awareness; Operational Training Plant & Equipment; Tarp Roller; Operational Training Plant & Equipment; Confined Space Gas Monitor; Chemical Application; OH&S Pre-Harvest Induction and OH&S Site Familiarisation Walk.
20 Mr McConaghy's evidence was that the last course would have included induction in respect of "working in high places requirements and the use of ladders".
Submissions of the Prosecutor
21 Mr G A Farmer of counsel, who appeared for the prosecutor referred to the decision of Wright J President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) (2000) 99 IR 163 at 185 - 186 as summarising the matters to be considered by a court in sentencing. Those matters include:
(a) the nature and quality of the offence, including the objective seriousness of the offence charged;
(b) the maximum penalty available;
(c) whether a plea of guilty has been entered;
(d) subjective and/or mitigating factors;
(e) prior convictions;
(f) the size of the organisation;
(g) the foreseeability of the risk of injury; and,
(h) the principles of parity, consistency and totality.
22 Mr Farmer submitted that the offence was a serious breach in that the temporary system which had been adopted, was one which was contrary to safety guidelines in three respects and one where the defendant's own guidelines appeared to have been ignored.
23 Counsel noted that as the defendant has previous convictions, the maximum penalty is $825,000. Counsel submitted that there was a need for both general and specific deterrence referring to Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Ramsay-Mayo) (2000) 49 NSWLR 610 at [73].
24 Mr Farmersubmitted that when considering a statute giving expression, as a matter of public policy, to standards of safety, the defendant has a positive obligation of informing itself of the circumstances of safe working: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh and Anor (1995) 59 IR 89 at 100.
25 It was submitted that the risk of injury was both obvious and readily foreseeable and that the availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. It was further submitted that in this case the risk of injury occurring was obvious and easily minimised and that Mr Ford suffered serious injuries as a result of him falling from in excess of three metres to the ground.
26 Finally, counsel acknowledged that the defendant was entitled to have taken into account its plea of guilty in mitigation of the objective seriousness of the offence and that it was appropriate to apply the guideline judgment in R v Thompson; R v Houlton (2000) 49 NSWLR 383. The prosecutor sought costs and a moiety of the fine.
Submissions of the Defendant
27 Mr P Skinner of counsel, who appeared for the defendant, commenced his submissions by emphasising that the defendant is a very large company with many employees and a large number of sites over the eastern seaboard.
28 Mr Skinner expressed contrition, on behalf of the defendant, and stated that the defendant "will continue to work to try and squeeze out all possible risks in its operation".
29 Counsel conceded that there had been a breakdown in respect of this incident. However he submitted that this was not a matter that should be assessed in the mid to high range but rather in the low to mid range of offences.
30 Mr Skinner acknowledged that the defendant had eight previous convictions but that two of these arose out of the same incident. The most recent incident for which the defendant was prosecuted occurred on 11 September 2001 with four offences occurring in 1999 and one each in 1998, 2000 and 2001. Mr Skinner submitted that since the last offence in 2001, the defendant had been trying to improve its procedures and should be given credit for that. The defendant has safety booklets, WRAC procedures, safe working instructions, procedures to stop the use of portable equipment and an ongoing policy of re-visiting matters. It should be given credit for each of these matters.
31 Counsel submitted that this incident occurred because procedures which were in place and documented were not followed, those being the requirement for a ladder to be secured at the top or held by a workmate. Counsel observed that since the incident, the possibility of this sort of accident occurring again has been prevented by the new platforms being put in place.
32 Mr Skinner took the court through each of the previous offences, submitting that each was distinguishable on its facts from the present case.
33 In relation to the principles to be applied in respect of sentencing Mr Skinner referred the Court to Boland J's decision in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor (2005) NSWIRComm 266. In this case, his Honour considered how the decision of the High Court in Markarian v R (2005) 215 ALR 213 impacted upon this jurisdiction. Mr Skinner encouraged the Court to adopt and follow his Honour's approach.
34 This led Mr Skinner to submit that the defendant was entitled to a discount of 25 percent for the utilitarian value of early plea and that the Court was not limited to 10 percent for the additional subjective factors. Counsel submitted all the factors were required to be weighed and that there was no cap on the appropriate discount that the Court should apply. Mr Skinner submitted that I should start with an assessment of the objective seriousness of the offence and then apply a substantial discount for all of the subjective factors of the defendant which have been put before the Court and which are separate to the discount it is entitled to for the early plea. Those factors included the good corporate citizenship of the company, the efforts it makes to comply with the OH&S Act, the practicality of looking at every site and every worker and every piece of equipment, the contrition expressed through its counsel, which, it was submitted, should result in a penalty in the low to medium range.
Consideration
35 The principles applicable to the determination of penalty in proceedings brought under the Act are now well settled.
36 The failure to which the defendant has pleaded guilty in this matter was a failure to ensure that the means of access to or exit from a platform using a portable ladder was safe and without risk to the health of Mr Ford and the failure to provide such information and supervision in relation to the work conducted from the platform so as to ensure the health and safety of its employees.
37 This is not a case where the defendant has no systems in place in relation to occupational health and safety. The evidence indicates that the defendant does take occupational health and safety seriously but on 30 December 2003, during a period when the defendant was modifying outload platforms at its sites to remove unacceptable risks, an incident occurred at its Narrabri Depot.
38 On 1 October 2003, the defendant had instigated an occupational health and safety directive to cease the practice of utilising rail wagons as a platform for train loading. As an "interim system", an aluminium ladder was used to provide the employee with access to the 3.36 metre high platform. The critical failure was that the ladder had been placed in a position with the base against the overflow chute at the floor level with the top resting against the platform. The top of the ladder extended 150 mm above the platform. It is required to extend one metre above such platform. The ladder was not secured at the top. When Mr Ford completed his work, he stepped onto the ladder which moved sidewards, causing him to lose his footing and fall.
39 In October 2003, the defendant issued a WRAC assessment relating to the temporary measures and the manner in which the work was to be performed. This statement was issued to those employed at its Boggabri Depot, however, a similar WRAC assessment was not forwarded to the Narrabri Depot where this incident occurred. The first item on the assessment was a direction to "secure ladder by platform" by tying off with ropes.
40 I accept that the defendant had in place an induction programme designed to inform employees of the dangers of working with ladders and working at heights. However, although the defendant forwarded a WRAC statement to other loading sites, no such document was forwarded to the Narrabri site. Had such a document been forwarded to the Narrabri site, this could have brought home to the employees the need to secure the ladder. Appropriate supervision of the site should have also revealed the unsafe practice being utilised by the defendant's employees. This was especially so when the temporary practice was put in place to replace another practice that was deemed to be unsafe and the temporary practice was continued for a period of about two months.
41 The risk of working with an unsecured ladder is obvious and in fact were known to the defendant because the temporary method of work implemented at the Boggabri Depot was designed to avoid a ladder slipping and a person falling to the ground.
42 The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. In my view, the offence is serious. In this case, the extent of the defendant's failure to provide adequate supervision, information and instruction and a safe system of work and the likelihood of those failures resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence.
43 It will be a serious offence where there is an obvious, or foreseeable risk, to safety against which appropriate measures were not taken, even though such measures were available and foreseeable: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464. In this matter the risk of injury was both obvious and readily foreseeable. The risk was one that was recognised by the defendant and one which the defendant had raised with employees. Methods for minimising such a risk form part of the defendant's safety manual.
44 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. In this matter, appropriate measures were not taken, in my view, even though such measures were available and feasible. These included the failure to provide to the employees at Narrabri a WRAC statement in relation to the temporary system, tying off the ladder at both ends and providing a ladder that was a sufficient length to properly perform the task at hand. Similarly, there was a failure to provide appropriate supervision of the work being undertaken or to have alerted the employees to the defects in the system that was being used by the employees.
45 Although the gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of the penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety. In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32], the Full Bench stated:
In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.
46 In this matter, in my view, the risk of injury occurring was obvious and easily minimised. The work was being undertaken at a height of 3.36 metres above a ground surface of concrete and metal. Any fall was likely to result in serious injury. At worst, a death could have occurred. Mr Ford suffered serious injuries as a result of him falling in excess of three metres to the ground below. He remained off duty from 30 December 2003 to 7 January 2004 when he returned for one hour on light duties. He remained on light duties for approximately one month.
47 In determining an appropriate sentence, consideration must be given to general and specific deterrence. In respect of general deterrence, the Full Bench observed in Capral Aluminium Ltd at [73], citing with approval the comments of Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388:
"…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."
48 In respect of specific performance, I note the defendant's attitude to workplace safety and the steps taken to improve safety following the accident. The defendant, subsequent to the accident, removed the rail access platform from which the worker fell and has replaced it with an appropriate platform with access to ladders that comply with the Australian Standard AS1657 Fixed Platforms Walkways, Stairs and Ladders - Design and Construction. The defendant, however, continues to be an employer operating 243 sites within New South Wales for the purposes of managing grain and its distribution. As was observed in Capral at [77]:
…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 is pro-active and not merely reactive…
49 Taking into account the size of the defendant's organisation and the fact of previous convictions (which I will discuss in more detail later in these reasons), there is a need for a strong element of both general and specific deterrence to remind the defendant of the need to be pro-active in searching out and eliminating risks.
50 There are a number of relevant subjective considerations. It was common ground that the defendant had entered a plea of guilty at the earliest opportunity in respect of the amended application for order. Applying the guideline judgment in R v Thompson; R v Houlton, the defendant is entitled to a discount of 25 percent for the utilitarian value of the plea. It was also common ground that there was co-operation with the WorkCover Authority of New South Wales.
51 Mr Skinner also pointed to what he described as the "good corporate citizenship" of the defendant, the efforts it has made to comply with the Act, the practicality of looking at every site and every worker and every piece of equipment and the contrition expressed by the defendant.
52 The defendant has eight prior convictions and in my view, has not shown good corporate citizenship and is therefore not entitled to any discount in this regard. I reject Mr Skinner's submission on this issue. Similarly, it is no answer to the absolute obligations imposed by the Act for any allowance to be given to the defendant's practicality of looking at every site and every worker and every place of equipment. The Act requires the defendant to ensure that employees are not exposed to risks to their health or safety whilst at work. The defendant is required to be proactive and vigilant in searching out risks to the safety of its employees.
53 I am prepared to take into account the contrition expressed by the defendant.
54 Submissions were advanced by both counsel in respect of the defendant's prior convictions. The first conviction concerned a matter dealt with in September 1999 in which a penalty of $2,500 was imposed by the Chief Industrial Magistrate. The second was an offence dealt with in the first instance by her Honour Glynn J who imposed a penalty of $26,000. That was altered on appeal to a penalty of $65,000. Both of those offences and penalties revolved around the operation of an electrically powered tarpaulin rolling machine.
55 The third conviction imposed by Staunton J related to the failure to adequately guard a grain drive overhopper. A penalty of $78,000 was imposed on the defendant. The fourth conviction was also imposed by Staunton J in circumstances where the defendant pleaded not guilty to an offence under s 15(1) of the Occupational Health & Safety Act 1983 ("the 1983 OH&S Act"). The offence related to the method of clearing grain blockages. Her Honour imposed a penalty of $135,000 on the defendant.
56 The fifth conviction was imposed by the Chief Industrial Magistrate. This matter involved a worker being bumped by a crane, falling and sustaining injuries. A fine of $25,000 was imposed on the defendant.
57 The sixth and seventh convictions related to offences pursuant to s 15(1) and s 16(1) of the 1983 OH&S Act. The prosecutions related to a Freightcorp grain freight train striking a bobcat obstructing the railway track at a grain siding. The defendant pleaded not guilty to the offences. The Chief Industrial Magistrate imposed a fine of $25,000 in respect of the s 15 breach and a fine of $15,000 in respect of the s 16 offence.
58 The eighth offence related to an employee of the defendant lifting his empty tipping trailer which came into contact with overhead high tension power lines resulting in the employee sustaining third degree burns to both heels and the left palm of his hand. Peterson J imposed a fine of $87,500 on the defendant.
59 Although it can be seen from the above analysis that none of the prior offences are of a nature and degree such as the offence before me, it is wrong to submit, as Mr Skinner did, that this offence is distinguishable from the earlier offences and should be considered independently of the earlier convictions. I reject the submissions. The antecedent criminal history of the defendant may be taken into account in determining the sentence to be imposed.
60 In Veen v R (No 2) (1988) 164 CLR 465, the High Court considered the impact of the criminal history of an offender upon sentence. The majority (Mason CJ, Brennan, Dawson and Toohey JJ) wrote at 477 - 478:
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 . 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. (Footnotes omitted).
61 In R v Johnson[2004] NSWCCA 76, it was held that the aggravating factor expressed in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, that "the offender has a record of previous convictions", should be read in light of the common law principle expressed in Veen v R (No 2), that a criminal record was not an aggravating feature so as to increase the seriousness of the offence but was relevant to issues such as denunciation and deterrence. The Court held it was unsatisfactory to refer to a previous record as an aggravating factor without explaining how the record was taken into account.
62 It is therefore appropriate that I take into account the antecedent criminal history of the defendant as, in my view, "it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind."
63 The offence cannot be characterised as an aberration in my view, but should be seen as continuing an attitude of disobedience to the law.
64 I accept that the defendant has significant training programmes and operational procedures in place covering a diversity of workplace circumstances and situations and that this incident occurred during a period when the defendant was upgrading its safety systems at grain depots and through a lapse, an accident occurred.
65 I also accept that the defendant, through the Graincorp Foundation provides one percent of its after tax profits to be used in rural centres to provide and assist the region in which the company operates. It was submitted that this amounted to many hundreds of thousands of dollars.
66 Mr Skinner submitted that Boland J's analysis of Markarian in Inspector Yeung v Howie Herring & Forsyth Pty Limited was correct and should be followed by this Court, which it was submitted meant that any discount for the subjective factors should not be limited to 10 percent.
67 Boland J in Inspector Yeung v Howie Herring & Forsyth, after considering Markarian, stated at [31]:
[31] It seems to me that what flows from the joint judgment in Markarian is that:
1 It is impermissible to look first to a maximum penalty, and to proceed by making a proportional deduction from it for the various factors to be taken into account in sentencing [31].