Consideration
37The objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting, Capral Aluminium, McDonalds and Walco Hoist (No 2)). I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] - [45]:
It is necessary to turn firstly to the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of employees (as charged) in this matter. In Cross City Tunnel it was observed, in that respect, at [195]:
The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100].
In Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, a majority of the High Court discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion is equally applicable to s 8 of the Act) as follows (at [11]):
What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.
The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]).
38When constrained by the particulars of the charge, the relevant risk in the present matter was the risk to employees of being injured by coming into contact with the dangerous parts of the elevated conveyor (being one of the three conveyors which made up the Trommel) whilst in operation.
39This matter concerns a failure to ensure that the Trommel used at the premises for the purpose of grading and sorting recyclable waste, and the systems of work relating to use of the Trommel by employees, were safe and without risk to health.
40The measures which would have obviated the risk, as described in the particulars, were as follows:
(1) the creation of, and adherence to, a formal safe operating procedure and the undertaking of a formal risk assessment regarding the operation of the Trommel including in relation to the removal and re-instatement of guarding on the elevated conveyor;
(2) ensuring appropriate guarding was in place to prevent access to the dangerous moving parts of the elevated conveyor (including the tail roller);
(3) ensuring that a requirement of any pre-operational visual inspection of the Trommel was to confirm that all guarding was present and secure and, if it was not, causing it to be re-instated;
(4) prohibiting the operation of, and access to, the elevated conveyor when guarding was not in place;
(5) ensuring that Mr Finnimore's supervision arrangements whilst working at the premises were clearly stated.
41There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered and the availability of simple remediable measures (see Cross City Tunnel at [191] (i) - (iii)).
42The presence of an unguarded, dangerous machine is itself a factor which demonstrates a high risk to safety (Inspector Jelley v Lanza Management Pty Ltd and Guiliano Lanza [2008] NSWIRComm 125 at [39]). The Court has previously stated, in Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 at [41], that:
... It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at [53].
43On the morning of the incident, as Mr Finnimore descended the set of stairs adjacent to the elevated conveyor, the sleeve of his shirt became caught, and his right arm entangled, in the moving parts of the conveyor's tail roller. The elevated conveyor was, at that time, unguarded.
44The Trommel's conveyors were fitted with guarding which was required to be removed, with a general tool such as a spanner, when the conveyor's belts were changed. It was an agreed fact that, approximately four weeks prior to the incident, new belts had been installed in two of the Trommel's conveyors, including the elevated conveyor. It was also agreed, however that, whilst clear that the guarding was absent on the day of the incident, no witnesses could attest as to when, exactly, the guard was removed (that is, whether it had been replaced after the new belts were installed four weeks prior to the incident, or how long it had been absent).
45It was submitted by the defendant, and conceded by the prosecutor, that, based on the available evidence, no inference could be drawn as to when the guard of the elevated conveyor had been removed or whether the guard had been missing for any length of time. I accept the submission of the defendant that the only finding which can be made, in this respect, is that the guarding was not affixed to the tail roller of the elevated conveyor on the morning of the incident. That submission conforms to the charge which alleges that the defendant contravened the Act on a single day (being 17 July 2009). I shall approach the issue of the absence of guarding on that basis.
46It was submitted by the defendant that there were systems in place prior to the incident. Those systems including visual, pre-operational inspections of the Trommel, training and visual assessments of employees for competency, the fitting of conveyors with guarding and the provision of an emergency stop button within reach of the tail roller of the elevated conveyor in which Mr Finnimore became entangled. It was accepted, however, that, in the circumstances, those measures were inadequate.
47As I noted in McDonalds at [219] (citing Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 33 and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21), whilst I accept that the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.
48The defendant is entitled to a moderate reduction in penalty in consideration of the systems which were in place at the premises prior to the incident. However, whilst the defendant should be given credit for the establishment of systems designed to achieve a safe work environment, it must also be assessed for the failures within those systems. In my view, the systems in place prior to the incident were not sufficiently comprehensive, vigilant and proactive (McDonalds at [184] and [222]). In addition to a failure to take simple remedial steps which would have obviated the risk (which I shall discuss below), the system that was established by the first defendant had evident failings. At the time of the incident, Orange did not have in place any formal, documented safe work procedures or risk assessments in relation to the use of the Trommel and, whilst employees were trained and visually assessed for competency in relation to operating and working with plant at the premises, neither training nor assessments were documented. Further, pre-operational visual inspections of the Trommel were conducted, but not recorded and, on the day of the incident, failed to detect (but should have detected) that the guard was missing.
49A related consideration is the availability of remedial measures that were straightforward or simple. Immediately following the incident, and prior to Orange being placed into voluntary liquidation on 7 December 2011, the guarding on the elevated conveyor was replaced, and access to the set of stairs near the conveyor was restricted by way of a gate and fencing around the perimeter of the Trommel. The procedure for the operation of the plant was reviewed by the defendant, and a written procedure in respect of such operation was produced. Orange revised its occupational health and safety system and developed formal documented safe work procedures. An employee induction handbook was developed in relation to machinery used at the premises, and all new employees were required to undergo a theoretical and practical assessment in relation to all plant at the premises. Minuted fortnightly tool box meetings were instituted and 32 cameras were installed, following Orange's relocation to larger premises at Padstow in September 2009, which allowed office staff to observe employees working in a safe manner.
50Whilst the response by the defendant following the incident was laudable, I accept the submission of the prosecutor that the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk and prevent the incident involving Mr Finnimore. In such circumstances, the steps taken by the defendant after the incident are demonstrative of flaws which existed in Orange's previous systems: McDonald at [226] (citing Kembla Coal at 36 and University of Sydney at 21-22).
51In Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117, the Full Bench acknowledged the proposition that an offence will be serious "where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible" (at [90] citing Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at [9] and Lawrenson Diecasting (at 476)). (See also Kembla Coal at 27; McDonalds at [450] and Capral Aluminium at [82].) This Court previously found, in Kembla Coal at 27, that the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of a defendant. Further, the existence of a foreseeable risk to safety which is likely to result in serious injury is a factor relevant in assessing of the gravity of an offence (Kembla Coal at 27; Morrison v Powercoal (No 3) at [88], Capral Aluminium at [81]-[82] and Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [87]).
52I accept the prosecutor's submission that the risk to employees of coming into contact with the moving parts of the elevated conveyor was foreseeable. Not only was the elevated conveyor left unguarded, but employees were required to transit within close range of the conveyor. This was evidenced by the fact that a set of stairs, used to access the picking line, and a narrow path, used to access an outdoor amenities area, were located immediately adjacent to the tail roller. Neither the stairs nor the path possessed any barriers to prohibit their use whilst the conveyor was operating, let alone operating whilst unguarded.
53A further consideration, in this respect, is the relationship between the seriousness of the injuries suffered, or which may have been suffered, and the assessment of the gravity of the offence (Capral Aluminium at [94]). The occurrence of the serious injury of Mr Finnimore manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.
54It was acknowledged by the prosecutor, and I accept that, at 19, Mr Finnimore's age may not be within the contemplation of the aggravating factors set out in s 21A of the CSP Act (in particular s 21A(2)(l) which provides that the vulnerability of a victim, where, for example, the victim was "very young", is an aggravating factor which may be taken into account by the Court in determining penalty). It was submitted that, however, the young age and relative inexperience of Mr Finnimore were factors which enhanced the objective seriousness of the offence. In reply, it was submitted by the defendant that, whilst Mr Finnimore was vulnerable due to his young age and the fact that he had been employed as a labourer for a reasonably short period of time prior to the incident, he had awareness of the way in which the company had been running and the systems in place (and had received training in that respect). This was due to the fact that Mr Finnimore had worked as a business administration trainee with Orange between October 2008 and June 2009 and had, during that period, often performed labouring duties at the premises.
55Employers carry an additional burden of responsibility for ensuring the safety of young and inexperienced employees on their worksites (Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82 at [14]). The presence of young and inexperienced persons in the workforce gives rise to an increased responsibility on the part of employers to ensure adequate training and supervision is provided, particularly as to matters concerning the occupational health and safety of those persons (Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78 at [93]).
56In Inspector Maddaford v Coleman, the Full Bench said at [96]:
... we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 (at [230]):
... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.
As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]-[65].
57At 19 years of age, Mr Finnimore would be considered to be a young man in the community, and was a reasonably young man for employment purposes. He had been engaged as a labourer by Orange for just one month prior to the incident. It is not clear how much labouring experience Mr Finnimore had gained prior to that engagement during his time working as an administration trainee at Orange. It is suffice to say, however, that any such experience was incidental to his traineeship. I have earlier discussed the limitation in the training regime at the workplace. In the circumstances, Mr Finnimore should be considered as having been a relatively inexperienced worker at the date of the incident. To that factor is added the fact that, on the day of the incident, supervision arrangements were inadequate. The vulnerability of Mr Finnimore due to his young age and inexperience is a factor which must add to the objective seriousness of the offence in this matter.
58It is appropriate to consider three further matters going to the question of objective seriouness. The first is the maximum penalty for the offence (see Cross City Tunnel at 192]). The maximum penalty for the offence, the defendant being a first offender, was $55,000.
59The second consideration is deterrence (see Cross City Tunnel at 192). General deterrence is applicable in relation to this offence. It is necessary to ensure that the penalty properly reflects the need for general deterrence, so as to draw attention to those operating in the waste management industry and other like enterprises of the need to ensure that adequate safety precuations are adopted in relation to inherently dangerous machinery in the workplace, particularly in workplaces which employ young workers, the safety of whom must be vigilantly ensured. The failure to properly guard machinery continues to be a significant cause of injury in the workplace and should be deterred by a significant penalty (WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340 at [65]). Persons engaging workers must understand that offences which occur in circumstances where there has been a failure to properly guard machinery will be regarded as serious. It must be reiterated to those engaging workers in industries engaged in the use of dangerous machinery that a failure to ensure such machinery is properly guarded at all times is, in the present day, unacceptable.
60It was submitted by the defendant (in reliance on the judgment of Boland J in Thiess) that, whilst the offence was serious, and general deterrence is a major consideration in occupational health and safety cases, it should not be permitted to override the offender's favourable subjective circumstances to an impermissible degree.
61The judgment of a Full Bench of this Court in Capral Aluminium established the applicable principles as to general deterrence in sentencing proceedings under the Act. For present purposes, the relevant passages of the judgment are as follows (at [73] - [74]):
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.
62When considered in the light of those principles, the factual circumstances of the present matter, and, in particular, the fact that the incident involved a young worker and unguarded machinery, are such that general deterrence must, in my view, feature prominently in the penalty imposed on the defendant.
63It was contended by the defendant that his propensity to re-offend must be considered when determining the weight to be attached to specific deterrence and, therefore, the need for the defendant to be specifically deterred by a significant fine was minimal, if indeed, in all the circumstances, it was necessary at all. It was accepted by the prosecutor, in this respect, that, given the defendant was no longer a director of a company nor engaged in the waste recycling industry, specific deterrence was not of elevated significance in the present case. In accordance with the principles stated in Cross City Tunnel (at [193]) (accepting that, in the circumstances, the likelihood of the defendant re-offending is low) there will be only a minor element for specific deterrence in the penalty.
64Thirdly, in assessing the objective seriouness of the offence in this matter, it is necessary to consider the submission of the prosecutor that, whilst the culpability of a personal defendant could be no greater than that of the corporate defendant, consideration should be given, in assessing the appropriate penalty to be placed on the personal defendant, to the role of the defendant in the management of Orange and the gravity of the offence as identified in relation to the corporate defendant. (It can be noted that, in the present case, there were no proceedings against Orange as it was in liquidation.)
65The defendant was, at the time specified in the charge, the sole director and general manager of Orange, and was responsible for the overall running of the business. He attended the premises on a daily basis and had a "hands on" role in the running of the company. The defendant had provided to Mr Finnimore, prior to the incident, a timetable sheet which indicated that, on the day of the incident, he was rostered to work on the picking line. Having regard to these facts it must be concluded that the defendant played a significant role in the running of the corporation and was responsible to a similar extent for its acts and ommissions as particularised in the charge.
66Before considering, overall, the question of objective seriousness, two matters require mention. First, it was conceded by the prosecutor that there were no aggravating factors present in the circumstances of the case.
67Secondly, in addition to the existence of safety systems prior to the incident and the positive steps taken by the defendant to improve those systems after the incident (as discussed above), there are some other factors which mitigate the seriousness of the offence in this matter. Primary amongst those was the fact that the defendant had no prior convictions (s 21A(3)(e) of the CSP Act). In addition, as discussed in relation to specific deterrence, the defendant is unlikely to re-offend (s 21A(3)(g)). (I shall consider subjective features of the matter below.)
68On balance, taking into account the factors in mitigation of the offence and the absence of any aggravating factors, the circumstances of the incident, particularly insofar as it involved a risk which was foreseeable, involving an unguarded piece of machinery, and which manifested in the serious injury of a young and inexperienced worker, must result in the conclusion that the offence was serious.