Inspector McDonald v Solo Waste Aust. Pty Limited

Industrial Relations Commission (NSW)|2004-07-29|Before: Boland J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector McDonald v Solo Waste Aust. Pty Limited [2004] NSWIRComm 211 PROSECUTOR Inspector Ian Clifford McDonald PARTIES : DEFENDANT Solo Waste Aust. Pty Limited FILE NUMBER: IRC 182 of 2003 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 - Plea of guilty - Waste recycling industry - Employee sustained serious leg injuries while attempting to clear materials in a hopper - Multiple failures - Second offence - Offence proven - Penalty imposed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Haynes v C I & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 Inspector McDonald v Solo Waste Aust Pty Limited [2004] NSWIRComm 43 CASES CITED : Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Howland (1998) 104 A Crim R 273 R v Slattery (1996) 90 A Crim R 519 Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 HEARING DATES: 07/15/2004 DATE OF JUDGMENT: 07/29/2004

PROSECUTOR: Mr R Reitano of counsel Solicitor: Mr M Carrick Geoffrey Edwards & Co LEGAL REPRESENTATIVES: DEFENDANT: Mr J P Phillips SC Solicitor: Mr M Laurence Stacks The Law Firm

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 29 July 2004

INSPECTOR IAN CLIFFORD MCDONALD v SOLO WASTE AUST. PTY LIMITED

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 211

1 The defendant in these proceedings has pleaded guilty to a breach of s 15(1) of the Occupational Health and Safety Act 1983. This judgment concerns the penalty to be imposed for that breach.

2 In 2001 Robert Hughes and Jason King were employed by the defendant at its waste recycling plant at 27 Oakdale Road Gateshead in the State. On 15 February 2001 Mr King entered a large metal hopper ('the 50 mm hopper") in order to move recyclable material towards a screw conveyor or auger located at the bottom of the 50 mm hopper. The auger delivered the material onto a conveyor belt. Mr King got out of the hopper and Mr Hughes got in and commenced cleaning material from the sides of the 50 mm hopper with his boots.

3 The auger was running when Mr Hughes entered the hopper. It was stopped for a short period then re-started. Mr Hughes continued to clean the sides of the 50 mm hopper with his boots. While doing so, his left foot became caught in the auger and dragged into it. Mr Hughes suffered an amputation of his lower left leg.

4 The defendant was charged with a breach of s 15(1) of the Occupational Health and Safety Act. That section provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

5 The charge alleged that the defendant, being an employer, failed: To ensure the health, safety and welfare at work of all its employees, and in particular Robert Hughes and Jason King, while operating plant, contrary to Section 15(1) of the Occupational Health and Safety Act 1983.

6 The failures particularised in the application for order were that: (h) The defendant failed to provide or maintain a system of work that was safe and without risk to the health of the employee operating the 50 mm hopper and auger.

(i) The defendant failed to make arrangements for ensuring safety in connection with the use of plant, in particular the 50 mm hopper and auger.

(j) The defendant failed to provide such training as was necessary to ensure the health and safety of work of its employees operating the 50 mm hopper and auger.

(k) The defendant failed to provide such instructions as were necessary to ensure the health and safety of work of its employees operating the 50 mm hopper and auger.

(l) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees operating the 50 mm hopper and auger.

(m) The defendant failed to provide such supervision as was necessary to ensure the health and safety of its employees operating the 50 mm hopper and auger.

7 I should state at this stage, having given the background to the charge, that there was an issue regarding the name of the defendant. On 29 December 2003 the defendant filed a notice of motion seeking a finding or declaration that it could withdraw its guilty plea without leave or, in the alternative, that it be granted leave to withdraw its guilty plea. The grounds and reasons upon which the defendant relied were that: 1. The defendant is the trustee for the Solo Waste Trust. 2. The defendant and Solo Waste Trust are separate legal entities. 3. At all relevant times the defendant was not an employer. 4. At all material times the defendant did not conduct the business of collecting and processing recyclable materials. 5. At all relevant times Mr Robert Hughes and Mr Jason King were not employees of the defendant. 6. The defendant's business was conducted by Solo Waste Trust. 7. At all relevant times Solo Waste Trust was the employer and did in fact employ Mr Robert Hughes and Mr Jason King. 8. As a consequence of the foregoing, the defendant could not be guilty to (sic) section 15(1) of the Occupational Health and Safety Act or any charge arising out of the incident on 15 February 2001.

8 In Inspector McDonald v Solo Waste Aust Pty Limited [2004] NSWIRComm 43 the Court found as follows: 9 At law a trust is not a juristic person: R P Meagher, W M C Gummow, "Jacob's Law of Trusts in Australia", 1997, 6th ed. Whilst a trust might be incorporated and acquire the power to contract there was no evidence in these proceedings that the Solo Waste Trust was a legal entity capable of entering into a contract of employment. It, therefore, could not be an employer. That the Trust was identified on group certificates and other business records as being an employer is not conclusive evidence of its status at law. No evidence was adduced as to the terms of the Trust. That leaves the question whether there is serious doubt about the identity of the proper defendant in this matter given the defendant's contention that it was the Trust that operated the business at Gateshead.

10 I am satisfied that Solo Waste Aust. Pty Limited, in its capacity as corporate trustee of the Solo Waste Trust and who holds the legal or equitable interest in the Trust, is the proper defendant in these proceedings. There does not appear to me to be any other entity that could be seriously regarded as the employer of persons at the premises at 25-27 Oakdale Road, Gateshead. Mr Richards, a director of the defendant, said in his record of interview that it was the defendant that operated the business at Gateshead and was the employer of one of the persons injured on 15 February 2001. Given that the Trust could not have been the employer it follows, in my opinion, that Mr Richards was not mistaken.

11 The defendant requires leave to withdraw its guilty plea. Leave is refused.

9 The defendant did not seek to challenge that decision. In the present proceedings, however, the defendant contended that the proper name of the defendant was "Solo Waste Aust. Pty Limited as Trustee for the Solo Waste Trust" and that the Court should ensure that name was accurately recorded as the name of the defendant and not Solo Waste Aust. Pty Limited: See Haynes v C I & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 at 456. This entity it was submitted, was, on the evidence, the employer of Mr Hughes and Mr King at Gateshead on the relevant date. Whilst it was conceded that Solo Waste Aust. Pty Limited as Trustee for the Solo Waste Trust was not the name of the entity registered under the Corporations Law (it being Solo Waste Aust. Pty Limited), it was submitted, nevertheless, that because Solo Waste Aust. Pty Limited was a trustee for more than one trust (the other being the Rico Family Trust) a distinction had to be made between its legal personality as trustee for the Solo Waste Trust and as trustee for the Rico Family Trust. It was submitted that a trustee holding property for the benefit of one trust whilst at the same time holding property for another trust had to be regarded as two distinct legal personalities.

10 The distinction was important because a previous conviction under the Occupational Health and Safety Act in 1995 that identified "Solo Waste Aust. Pty Ltd" as the defendant on whom a fine of $3,000 was imposed, related to an offence at a place of work at Chinderah in the State. The relevant employer in that case, it was submitted, was not Solo Waste Aust. Pty Limited as Trustee for the Solo Waste Trust but rather Solo Waste Aust. Pty Limited as Trustee for the Rico Family Trust. Unless a distinction was made between the two entities, it was submitted, the defendant in these proceedings would attract a higher maximum penalty by virtue of s 51A of the Occupational Health and Safety Act.

11 I do not accept that it is necessary for me to identify the defendant in these proceedings as "Solo Waste Aust. Pty Limited as Trustee for the Solo Waste Trust". That a corporate entity might hold property in trust for more than one trust does not, in my opinion, give that entity a different legal personality in respect of each trust for the purposes of the Occupational Health and Safety Act. The employer of Mr Hughes and Mr King at the Gateshead place of work was Solo Waste Aust. Pty Limited. That it may have been a trustee is, in my opinion, not relevant to the identity of the defendant. I would comment in passing that if I were to accept the defendant's contentions it could mean that any corporate entity with multiple work places could arrange to be a trustee for a different trust at each workplace and avoid liability in relation to a second or subsequent offence where that offence occurred at a different work place controlled by that entity.

12 I propose to proceed on the basis that the defendant, Solo Waste Aust. Pty Limited, pleaded guilty to the offence and that it has a prior conviction under the Act.

13 An agreed statement of facts was tendered. It is necessary to record a number of the agreed facts as follows: 10 A screw conveyer ("auger") delivers material onto the sorter conveyor belt. The lower end of this auger is located in the bottom of an open top receiving hopper ("the 50 mm hopper").

11 The 50 mm hopper is a purpose built machine for recycling materials and was purchased by the defendant from a third party and installed by a third party.

12 The 50 mm hopper is constructed of steel and is 1650 mm square and 2100 mm high on one side. The other three sides have been extended a further 1200 mm. The sides are vertical from the top down for a distance of approximately 920 mm and then slope inwards to the bottom where the auger is located. The auger rotates and conveys material from the hopper.

13 Material sometimes remains on the sides of the 50 mm hopper or there is a bridging of material which prevents the material moving to the bottom to be conveyed by the auger.

14 A steel access door measuring 450 mm x 350 mm is located on the lower side of the 50 mm hopper. The access was specifically designed to be used to move material in the hopper with (sic - without) a person entering the hopper.

15 The practice that sorters sometimes used to move material in the 50 mm hopper was to climb into the hopper and kick the material down.

16 This practice sometimes occurred without lock down or isolation procedures being used and, at times, while the auger was running. 17 The defendant's employees Robert Hughes and Jason King had each at some time entered the 50 mm hopper in order to move material toward the auger.

18 The plant supervisor was aware that employees entered the 50 mm hopper.

19 Employees and in particular Mr Hughes and Mr King were never directed not to enter the 50 mm hopper.

20 Employees and in particular Mr Hughes and Mr King were not aware of any specific instructions relating to dealing with material which remained on the sides of or was bridged in the 50 mm hopper.

21 Employees and in particular Mr Hughes and Mr King were not given specific instructions on lock down procedures for the purpose of dealing with material which remained on the sides of or was bridged in the 50 mm hopper.

22 Employees and in particular Mr Hughes and Mr King were not aware of any specific instructions relating to dealing with material which remained on the sides of or was bridged in the 50 mm hopper.

23 Employees and in particular Mr Hughes and Mr King were given training regarding the use of danger tags and isolation procedures. A training session was given by Mr Neil Mitchell, an Occupational Health and Safety Consultant engaged by the defendant from Labour Coop. on 15 February 2001.

24 Management and in particular Peter Edan and George Graham, Branch Managers and Ross Dixon, Client Supervisor had employees including Mr Hughes and Mr King attend a "tool box" session on occupational health and safety conducted by Neil Mitchell an independently contacted Occupational Health and Safety Trainer. All three maintain training was given on lock out procedures, padlocking and danger tags.

25 Employees and in particular Mr Hughes and Mr King were not given training regarding lock down or isolation procedures specifically concerning the 50 mm hopper.

26 Employees and in particular Mr Hughes and Mr King were not given danger tags or padlocks at the training on 15 February 2001 and were not given examples of the procedure using the hopper.

27 On the morning of 15 February 2001 the Plant Supervisor directed Jason King, Robert Hughes and Jennifer Mitchell to work on the 50 mm sorter.

28 Mr King entered the 50 mm hopper to clean the sides of remaining material.

29 A short time after Mr King got out of the 50 mm hopper Mr Hughes entered the hopper. Mr Hughes commenced cleaning the material from the sides of the hopper with his boots.

30 The auger was running when Mr Hughes entered the 50 mm hopper. The auger stopped for a short time. Mr Hughes then told Ms Mitchell to restart it.

31 After the auger restarted Mr Hughes spent some time cleaning the sides of the 50 mm hopper with his boots.

32 While doing this his left boot became caught in the auger and dragged into it. Mr Hughes suffered an amputation of his lower left leg.

33 The inspector undertook an investigation into the incident that occurred at Solo Waste Aust. Pty Limited ("Solo Waste") on 15 February 2001 which resulted Mr Robert Hughes being injured.

35 Sometime after the inspector's attendance at the premises of Solo Waste to investigate this matter, a mesh screen was welded across the side of the 50 mm hopper, over which employees had previously gained access.

14 Annexed to the agreed statement of facts was a factual inspection report of the incident completed by Inspector McDonald on 26 July 2002 and eight colour photographs of various aspects of the place of work including the 50 mm hopper. The prosecutor also tendered a "WorkCover Infringement Notice" dated 31 August 2001 issued on the defendant in relation to its Chinderah plant concerning an unguarded nip point. I should note that I did not take this notice into account in determining sentence.

15 Evidence for the defendant included a letter from the defendant's solicitor dated 9 July 2004 to the solicitor for the prosecutor requesting a copy of the file relating to the defendant's 1995 conviction. The file was unable to be produced. The defendant also tendered an affidavit of Robert Emlyn Richards, a director of the defendant, an affidavit of Anne Maree Pelly, Administration Manager and OHS Co-Ordinator for the defendant, a facsimile message dated 5 July 2004 from QBE Workers Compensation (NSW) Limited to the defendant solicitors confirming that it was the current workers compensation fund manager for Solo Waste Trust and the Rico Family Trust. The letter indicated that "the insured have a better than average claims incidence and severity rate than other businesses in the waste disposal industry" and that the insured also participated in "the Premium Discount Scheme" a scheme that "involves (sic) employers to actively improve and update their occupational health and safety practices and procedures to qualify for a discount on their Workers Compensation policy." It was said the insured had passed the final audit.

16 Mr Richards was called and gave evidence relating to the issue of the name of the defendant. His affidavit covered broader issues including: (a) The history of the defendant.

(b) The sale of the Gateshead operation in December 2001.

(d) On the morning of and prior to the incident a training session was conducted on the correct use of lock out tags and isolating machinery for purposes such as cleaning and clearing blockages. (e) The engagement of a consultant to investigate and report on the incident.

(f) Modifications made to the 50 mm hopper after the accident.

(g) The defendant's occupational health and safety activities prior to the incident, which included: (i) Regular fortnightly safety meetings (ii) An active Safety Committee which liaised with management (iii) Regular safety inspections of plant (iv) All employees were inducted to the site (v) Continuous safety improvements were performed (vi) Safety training was provided for all employees (vii) OH & S audits conducted each year by an external assessor approved by Hunter Resource Recovery.

(h) Changes to occupational health and safety practices and procedures following the incident, which included: (i) Work Procedures and Safe Work Procedures manuals are issued to all staff and they are trained in their use (ii) Formal OH&S Audits are carried out at all sites periodically (iii) Any safety issues are dealt with through written Health, Safety and Environment Hazard Log Sheets (iv) Safe work procedures are continuously being implemented to cover jobs and tasks to be performed (v) The appointment of a full time Occupational Health and Safety Coordinator at our Head Office (vi) Risk assessments are being performed regularly (vii) The appointment of a full time Training Manager.

(i) Regular Occupational Health and Safety Committee meetings are now being held.

(j) Increased expenditure on occupational health and safety management issues.

(k) Payment of $5,000 (in addition to wages and workers compensation payments) to Mr Hughes to assist him in modifying his home in any way to accommodate his injuries.

17 Ms Pelly's evidence went to the following matters: (a) The accident involving Robert Hughes was a shock to the company and its management, directors and staff. (b) Ms Pelly was appointed OHS Coordinator for Solo Waste in September 2001 and an OHS management team was formed. (c) A consultant was engaged to consult and assist with the implementation of a new OHS system. (d) Some of the initiatives implemented as a result of the review and OHS management team were: (i) Commencing November 2001 all staff members were sent on WorkCover NSW Occupational Health and Safety Induction Training for Construction Work course. All new employees attend such course and a copy of the certificate issued to me is attached. Each employee is issued a similar certificate by WorkCover on completion of the course. A Training Register is maintained to ensure each new employee attends the course. (ii) All employees attended an in-house training session on OHS. Each employee is given a staff manual specific to their job description (some sections of the Full Manual, not relevant to that job description are not given, and the staff do not get all the job descriptions). All the policies are discussed and read through with the employees. Each employee is asked questions to ensure their understanding. The employee then gets the general section of the manual and the sections of the manual relevant to their job description. Each employee gets a copy of all company policies. No employee starts working unsupervised until they are certified competent. On commencement of employment documents are completed in relation to induction. This includes an assessment of qualification, training, need for further training and issue of Lock Out Tags. (iii) Lock Out procedures are recognised as a critical safety issue for the company. Each employee, as part of their training, views the video "Lock Out and Tag Out" produced by Safety Image (the Court viewed the video). All staff are issued with Lock Out tags and shown where to obtain replacement tags. Each employee is shown the procedure specific to Lock Out tags for their site or machinery by that employee's supervisor. (iv) Regular inspections are carried out to ensure compliance with the Lock Out tag procedure. Employee infringement notices for failing to comply are kept on employee's files and are considered on review of the employee. If an employee receives two infringement notices a report is given to Ms Pelly for action on that employees breach. (v) Regular monitoring occurs to check employees have Lock Out tags with them or immediately available to them and that replacements are always available. This is monitored by random check and annual review. (vi) Staff manuals are issued to all employees included the following:

· Letter from Rhys Richards (Director) to all staff members introducing the OHS requirements. · All company policies · General Work Procedures and Safe Work Procedures · Job specific Work Procedures and Safe Work Procedures. (vii) Risk assessments are conducted on a regular basis to ensure Safe Work Procedures are relevant and meaningful. (e) The defendant has employed a training manager and full time Occupational Health and Safety Coordinator. (f) The defendant participates in a Premium Discount scheme sponsored by WorkCover (referred to earlier). (g) All Solo Waste branches now have OHS committees where all members have attended the WorkCover NSW course in OHS Consultation. Minutes of meetings are recorded and forwarded for review by the OHS management team. (h) The defendant and staff were distressed to learn of Robert Hughes' accident. At the time of the accident the company had some procedures in place to ensure employees safety. Since the accident and introduction of the Occupational Health & Safety Act 2000 the company's commitment to safety has been a paramount concern.

18 The primary consideration in sentencing is the nature and quality of the offence viewed objectively: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. The maximum penalty in this case is $825,000. The size of the penalty prescribed reflects the legislative and community expectation that offences under the Act will be treated seriously (see R v Howland (1998) 104 A Crim R 273; R v Slattery (1996) 90 A Crim R 519 at 524). 19 In Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 I observed at [7] to [9]: 7 Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. 8 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium. 9 In sentencing an offender the Court is also required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors where they are relevant and known to the Court.

This is the approach I have taken in the present proceedings.

20 The obligation upon an employer under s 15(1) is to ensure the health, safety and welfare at work of all of its employees. The risk to safety in this case was that arising from the operation of the 50 mm hopper and the auger. The defendant pleaded guilty to multiple failures to ensure safety as particularised in the charge. The failures were: a failure to provide and maintain a safe system of work; a failure to make arrangements for ensuring safety in connection with the use of plant; a failure to provide such training as was necessary to ensure the health and safety of work of its employees; a failure to provide such instructions as were necessary to ensure the health and safety of work of its employees; a failure to provide such information as was necessary to ensure the health and safety at work of its employees; and, a failure to provide such supervision as was necessary to ensure the health and safety of its employees.

21 There was, in this case, an obvious and serious risk to safety. This is highlighted by the agreed statement of facts, in particular at paragraphs 14 to 22: 14 A steel access door measuring 450 mm x 350 mm is located on the lower side of the 50 mm hopper. The access was specifically designed to be used to move material in the hopper with (sic - without) a person entering the hopper.

15 The practice that sorters sometimes used to move material in the 50 mm hopper was to climb into the hopper and kick the material down.

16 This practice sometimes occurred without lock down or isolation procedures being used and, at times, while the auger was running.

17 The defendant's employees Robert Hughes and Jason King had each at some time entered the 50 mm hopper in order to move material toward the auger.

18 The plant supervisor was aware that employees entered the 50 mm hopper.

19 Employees and in particular Mr Hughes and Mr King were never directed not to enter the 50 mm hopper.

20 Employees and in particular Mr Hughes and Mr King were not aware of any specific instructions relating to dealing with material which remained on the sides of or was bridged in the 50 mm hopper.

22 Employees and in particular Mr Hughes and Mr King were not aware of any specific instructions relating to dealing with material which remained on the sides of or was bridged in the 50 mm hopper.

22 As to the seriousness of the risk, I agree with the submissions put by Mr Reitano of counsel for the prosecutor: The fact that employees had engaged in the practice of entering the hopper in the past and the obviousness of the prospect that they might be drawn into the auger renders the instant offence a very serious one. This is, at least in part, because it was only necessary to do the most basic of risk assessments to identify the danger once an employee had entered the hopper.

23 What makes this offence particularly serious is the multiple failures on the part of the defendant. Further, the fact that the supervisor was aware that employees entered the 50 mm hopper underlines the grievous failure to provide the necessary supervision and the failure to instruct and train.

24 The risk to safety could easily have been avoided as demonstrated by the installation after the incident of a mesh screen across the side of the 50 mm hopper, over which employees had previously gained access. Moreover, there was nothing difficult about providing to employees proper training in relation to isolation or lock out procedures and ensuring such procedures were followed.

25 The consequence of the breach was the amputation of part of Mr Hughes' lower left leg. In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32] the Full Bench stated: 32 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. The injuries to Mr Hughes manifest a very serious risk to safety.

26 In Capral Aluminium at [74] the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence the Full Bench added at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable." It is appropriate in this case that I give weight to the need for general deterrence.

27 As for specific deterrence, I note that although the defendant has sold the Gateshead plant it continues to operate in the waste disposal industry. However, I also note the defendant has taken appropriate steps since the incident to improve its policies and procedures regarding occupational health and safety. Moreover, the defendant has been operating in one form or another since 1932 (although at Gateshead only since 1996) and this is only its second offence since that time. These considerations cause me to place only limited weight on the need for specific deterrence because they indicate that the chances of the defendant re-offending are not high. 28 The defendant is entitled to a discount on sentence for the plea of guilty, although in light of the motion seeking to withdraw its guilty plea the defendant cannot have the full benefit of the discount. I, therefore, propose to allow a discount of 17.5 per cent for the utilitarian value of the plea. The motion seeking to withdraw the guilty plea also reduces the value the Court might otherwise place on the defendant's expressions of contrition.

29 There are a number of other relevant subjective factors to be taken into account but as I have already observed, they are secondary considerations to the objective seriousness of the offence that, in this case, places it in the higher range of seriousness. I have taken into account the improvement by the defendant of its policies and practices relating to occupational health and safety, which I consider was overdue but, nevertheless, what has been done is commendable. The assistance provided to Mr Hughes after the accident is also a relevant subjective factor in the defendant's favour. Further, the defendant cooperated with the investigating authority.

30 I consider that an appropriate penalty in this case, having regard to the relevant objective factors, is $400,000. This is to be reduced by 17.5 per cent for the utilitarian value of the guilty plea and a further 10 per cent for other subjective factors. This results in a fine of $290,000.

31 I make the following orders: 1) A verdict of guilty is entered.

The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $290,000 with a moiety thereof to the prosecutor.

The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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Judgment (87 paragraphs)

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Cases Cited (11)

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