The parties' respective cases
6 The case advanced for the prosecutor, by Mr Chin of counsel, was that the objective features of the offence in question warranted the imposition of a substantial penalty, for a number of reasons, including that s 11 of the Act imposed strict obligations on a supplier such as the defendant, which were not diminished because of error or inadvertence on the part of the user of the machinery supplied. (See WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [38], [47] and [49].) The machine was unsafe at less than the maximum slope angle of 5 degrees, as to which the defendant had instructed Integral Energy employees. The defendant had obligations to ensure safety, even though the machine was primarily designed and manufactured by another party. Principles of deterrence required that the defendant and other suppliers be deterred from failing to adequately and independently ensure or verify that dangerous plant such as this, is stable. The risk which materialised in November 2002 was foreseeable and obvious. Available measures to ensure safety were not taken by the defendant. The gravity of the risk was serious. Death was not a remote possibility in the case of breach.
7 A number of subjective factors were acknowledged, including the early plea entered and the fact that the defendant had no prior convictions.
8 The case advanced for the defendant, by Ms Thompson of counsel, was that the defendant accepted that it had committed the offence charged and had accordingly entered a plea at the earliest opportunity, but there were significant mitigating factors which would be taken into account, with the result that a penalty at the lower end of the scale would be imposed.
9 It was submitted to be relevant that the risk flowed from design features of the machine for which the defendant was not responsible and which were not obvious or known to the defendant. It had commissioned the construction of the equipment, having selected a designer and manufacturer, with a good reputation for safety. The use to which the machine was to be put was made known by the defendant; it had participated in the design process, emphasising the need for stability of the machine to be ensured, given the work it was to perform; the designer's New South Wales agent had also been involved in the design process; when provided to it, the defendant had tested the machine's operation, but not its compliance with specified Australian design standards, because the machine was fitted with a compliance plate and a certificate of compliance had been issued by the Victorian WorkCover Authority, on which it had relied; it had trained the employees of Integral Energy in the operation of the machine in accordance with the designer's instructions, which specified use of the machine at grades up to 5 degrees; the accident had occurred when the machine was used at grades significantly in excess of 5 degrees and in circumstances where the machine had been parked inconsistently with ordinary operational practice, adding to its instability.
10 The steps taken by the defendant after the accident were also relied upon, as well as evidence of its general approach to safety, and its years of safe operation, consistent with that approach. It was noted that while the recommendations made by Mr Findlay had been acted upon by the defendant, they had still not been included in the relevant Australian Standard. It had also entered a plea at the earliest opportunity, consistent with its acceptance of its obligations.
11 It was argued that relevant to an assessment of the nature and quality of the offence was that the offence had flown from an inherent design flaw in relation to the machine's stability, the responsibility for which primarily lay with the designer and manufacturer of the machine, who had the capacity and knowledge to ensure the machine's stability, and had failed to do so. It had made known to the manufacturer the importance of stability, given the intended use of the equipment; it had insisted on additional measures to ensure stability in the design and had tested their operation prior to supply; it had relied on the compliance plate and certificate provided in relation to Australian Standards being satisfied and had thus not tested this, it being testing of a kind which the defendant did not have the capacity to undertake itself; it relied on the training and instruction manuals provided and had delivered training in accordance with those documents. It followed, it was argued, that it was not readily foreseeable to the defendant that, in fact, the machine became unstable at a slope of 4 degrees and there was nothing apparent at the time of the supply of the machine to it, which suggested that it was not fit and safe for its intended use, or that there was any inherent instability in the machine.
12 Also to be taken into account, it was submitted, were the observations of the Full Court in Nesmat Pty Limited v WorkCover Authority of NSW (1998) 87 IR 312, that there would be a justifiable sense of injustice in this case, where neither the designer and manufacturer of the machine, or the New South Wales agent also involved in its design, had been prosecuted. It was only this defendant and Integral Energy, against whom the prosecutor had laid charges.
Consideration
13 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors.
14 Given the nature of the machine here in question, the design flaws which the accident highlighted, plainly gave rise to serious risks to safety. The machine was designed to permit work to be undertaken at considerable height, in rough terrain in the bush. In those circumstances, the need to ensure that the machine was stable when operated was obvious. While, on the evidence, the defendant took steps to ensure that the machine was manufactured with these needs in mind, the necessary stability, was not ensured. Indeed, the advice given by the defendant to Integral Energy as to the slope at which the machine could be safely operated was inaccurate, albeit the advice was consistent with that provided by the manufacturer and designer of the machine. On the evidence, the consequences for Mr Fletcher, when the machine toppled while he was working at a height of 11 metres, while serious, could easily have resulted in greater injury, or even death.
15 The defendant's plea properly accepted its culpability in the circumstances, given the absolute obligations which the Act imposes upon suppliers of plant. I am also satisfied, however, that on the evidence the offence does not fall within the more serious range of cases which come before the Court.
16 The evidence showed that on 19 November 2002 when the risk materialised, the machine was being operated on a slope considerably greater than 4, or even 5, degrees, the slope at which the machine could, in fact, be operated and that which the manufacturer advised to be safe. Despite this, the defendant accepted its culpability, as I have noted. I accept that it is relevant to an assessment of penalty that foreseeability be considered. Here, it cannot be overlooked in assessing the foreseeability of the risk in question, that this was not a case of neglect of a readily apparent danger of the machine tipping at a slope of 4 degrees. While the machine became unstable at that degree of slope, rather than at a slope of 5 degrees, such instability was not evident without specialised testing of the machine which the defendant did not itself have the capacity to undertake. It must be accepted, of course, that the risk of the machine tipping if it became unstable was entirely foreseeable. In entering its plea, the defendant accepted that it had committed the offence by wrongly placing reliance on the designer and manufacturer's assertion that the machine was stable at a 5 degree slope and on the Victorian WorkCover Authority certificate. These are all matters relevant in assessing foreseeability.
17 Also relevant is the evidence which showed that the defendant selected a designer and manufacturer with a sound reputation, whose managing director was a qualified engineer of many years experience and a member of the Standards Australia Committee. The defendant not only informed the designer of the work for which the machine was required, but sought to ensure that additional measures were taken to ensure the stable operation of the machine in rough terrain. When supplied, the defendant tested the machine to ensure that it was in safe working order. As it acknowledged by its plea, inconsistently with its obligations under the Act, it relied upon a compliance plate and certificate issued by the Victorian WorkCover Authority, to assure itself that the machine complied with the relevant Australian standards and could be operated safely on a slope of up to 5 degrees, as the manufacturer represented.
18 Regrettably, that certificate was not properly understood by the defendant. The certification did not evidence that the WorkCover Authority had satisfied itself of such compliance. Rather, it showed that in accordance with the requirements of the applicable Victorian Regulations, another designer had certified such compliance. So it was that the offence was committed. These factors are relevant nevertheless, in assessing the defendant's level of culpability for the offence it has admitted.
19 As a result of the accident, the defendant revised its approach to equipment which it supplies and now engages external expert testing, to satisfy itself as to the safety of such equipment, before hiring it out. This approach has been added to steps previously taken by the defendant to ensure that its safety obligations are met. These include the testing, inspection and repair of equipment which it offers for hire, both after each hire and in the field, on a regular monthly basis by its mobile mechanics. The evidence also revealed the financial commitment which the defendant already made annually, prior to these events to ensure its safety obligations were met.
20 These steps were taken by the defendant, together with others designed to ensure that its obligations under the Act were met. In relation to the machine here in question, it was independently tested after the accident and then modified to ensure its safe operation, at considerable cost.
21 All these steps were plainly commendable. However, in the case of the steps taken in response to the deficiencies of this machine, the evidence confirmed that they were steps which the defendant should have taken before the accident, as the defendant accepted by its plea. There was no suggestion that there was any difficulty in taking them. Rather, it was as the result of misplaced reliance upon incorrect information provided by the manufacturer and designer and a misunderstanding of what a Victorian WorkCover Authority Certificate conveyed, which led to the commission of this offence.
22 I am satisfied that in the circumstances of this case, both general and specific deterrence have a role to play in the penalty imposed. I have approached specific deterrence on a somewhat lesser basis than I would have, in the absence of evidence of serious prior attention to ensuring safety. I am not satisfied however, that it is an element of penalty which can properly be entirely excluded in the circumstances of this case.
23 I have also noted the observations of the Full Court in Nesmat. There was no explanation as to why the designer of this machine and its New South Wales agent have not been prosecuted. As was there taken into account, it is relevant here to have regard to that matter. The fact that the primary cause of the risk was the design of the machine and the inaccurate advice given by its manufacturer, as to its safe use must be taken into account. As I have noted, the risk was compounded by the reliance placed upon the certificate that the machine complied with the applicable standard and had been adequately tested as to its stability. These are matters which must not be overlooked in determining sentence, so that the sentence imposed does not give rise to a justifiable sense of injustice.
24 I also note that I have adopted the approach I discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31], to the determination of penalty having regard to the plea entered at the earliest opportunity and the other evidence going to mitigation. I am well satisfied that there was real contrition on the part of the defendant for the offence and its consequences, which must properly be reflected in the penalty imposed. I also accept on the evidence that this is a defendant unlikely to offend again.
25 The maximum penalty, for this first offence is $550,000. I have concluded that a penalty of $48,750 is just in all of the circumstances here before the Court.
Orders
For all of the reasons given, I make the following orders: