Inspector Pile v McLeods Traditional Pty Ltd

Judgment 1McLeods Traditional Pty Ltd ("the defendant") conducts a business of a commercial bread depot and pastry production outlet at 491 Beryl Street, Broken Hill in the State of New South Wales ("the site"). 2On 13 April 2007 at approximately 2.20am, William Gordon McMaster, who was employed as a truck driver by Levira Pty Ltd ("Levira") was seriously injured at the defendant's site when a forklift rolled down a ramp and hit him, pinning him against the truck trailer. 3Mr McMaster was undertaking delivery work at the defendant's site. Mr McMaster's employer had a contract to collect bread at the Goodman Fielder depot in Mildura and deliver it to the defendant's site. 4As a result of the incident, Mr McMaster received blunt trauma injuries to his abdomen and pelvis area including fractures to his hip, leg and pelvis, penetrating abdominal injuries and right-side soft tissue damage. 5Mr McMaster stated that he had almost made a complete physical recovery from the injuries and has returned to full time work with another trucking company.

The charge 6The defendant was charged in an amended application for order with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act") by failing to ensure "that persons not in its employment and in particular, William Gordon McMaster, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work". 7The particulars of the charge were: "1. The risk was the risk of a forklift colliding with a person and crushing them. 2. The defendant failed to ensure that the keys to a forklift were secured so that unauthorised people could not access or operate that forklift. 3. The defendant failed to ensure that a forklift located at the site was properly maintained, in particular that the handbrake was in working order. 4. Mr McMaster suffered serious injuries." 8The defendant pleaded guilty to the offence as charged in the amended application for order at the earliest opportunity. I am satisfied, on the evidence, that the defendant is guilty of the offence, as charged, and that it was appropriate for the plea of guilty to be entered. It follows that this judgment is concerned only with the question of penalty.

Statutory provision 9Section 8(2) of the OHS act provides as follows: (2) Others at workplace An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

Prosecutor's evidence 10Mr R Reitano of counsel, who appeared for the prosecutor, tendered an agreed statement of facts which provided: 1. The prosecutor is and was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. Levira Pty Ltd of registered address 43 Edwards Street, Norwood, South Australia undertook the business of transportation of goods. 3. McLeods Traditional Pty Ltd ACN 104 780 430 of registered address 491 Beryl Street, Broken Hill, New South Wales, undertook the business of a commercial bread depot and pastry production outlet, at the site of its registered address. 4. On 13 April 2007, William Gordon McMaster was seriously injured at the bread depot operated by McLeods, when a forklift truck rolled down a ramp and hit him, pinning him against a truck trailer. At the time, he was undertaking delivery work at the bread depot operated by McLeods at the site. Mr McMaster was impaled by the right-side tine of the forklift truck and was trapped for about 15 minutes. 5. Mr McMaster was employed by Levira as a truck driver. Background 6. On 13 April 2007 at approximately 2:20am, Mr McMaster arrived at McLeod's depot at to deliver a load of bread. 7. Mr McMaster parked the truck and trailer in front of a concrete ramp and double roller door at the southern end of the building at the site. There was no one else on site at this time. He accessed the main area of the building by using a key that was used by the other drivers of the delivery run. He disengaged the security alarm which gave him access to the depot but not to the office area. 8. Mr McMaster entered the depot and raised the roller door. He walked back down the concrete ramp and pulled the curtains back on the truck trailer. Mr McMaster moved the gate which secured the bread on the trailer and moved a dolly of bread to the side of the truck so that he could gain access to it. 9. There was a Nissan forklift truck in the depot. The key was in the ignition, where it was usually left. 10. Mr McMaster re-entered the building and used the key to start the forklift truck. 11. Mr McMaster then drove the forklift down the concrete ramp, lifted a dolly of bread off the trailer and drove back up the ramp and placed the dolly in the depot. Mr McMaster parked the forklift at the doorway of the depot adjacent to the concrete ramp with the tynes in a raised position. He alighted from the forklift and walked down the ramp to the trailer. Mr McMaster moved another bread dolly and secured it. As Mr McMaster was facing the trailer and turned slightly, he was struck by the forklift, which had rolled down the concrete ramp. The right tyne of the forklift impaled Mr McMaster against the truck trailer where he remained trapped for a period of approximately 15 minutes. 12. At approximately 3am, Jason Cini, an employee of McLeods, arrived for work and was immediately alerted on hearing cries for assistance from Mr McMaster. 13. At the insistence of Mr McMaster, Mr Cini operated the forklift and reversed the forklift off Mr McMaster and reversed into the depot. Mr Cini then rendered assistance to Mr McMaster and telephoned for an ambulance. 14. Mr McMaster was treated by the ambulance officer at the site. He was also treated at Broken Hill Hospital. Once stabilised he was flown to Royal Adelaide Hospital for further treatment. 15. As a result of the incident, Mr McMaster received blunt trauma injuries to his abdomen and pelvis area including fractures to his hip, leg and pelvis. He also sustained a fracture to his right pelvis penetrating abdominal injuries and right-side soft tissue damage. 16. As at the date of the interview with Mr McMaster on 3 July 2007, Mr McMaster was unable to work after the incident. He walked with the aid of a walking stick. SYSTEM OF WORK BEFORE THE INCIDENT 17. Levira had been operating this delivery run 7 days per week for a number of years, using different drivers. Mr McMaster had done the trip numerous times. McMaster had worked for Levira or other companies that were associated with Levira or its director on a casual basis since 2005. 18. Levira did not have any documented procedures for delivering and unloading the bread from trucks at the site. 19. Levira had provided a metal ramp that was to be used by its employees to unload the bread dollys at McLeods. The ramp had to be wheeled from within the depot, down the concrete ramp and lifted up to the edge of the trailer. The bread dollys were then to be rolled down the metal ramp into the depot. The investigation revealed that the metal ramp had not been used for approximately 6 months prior to the incident due to its poor condition. The forklift had been used to unload bread on previous occasions by Levira employees. 20. Mr McMaster did receive some training and instruction about the unloading process by a Levira employee and by the director of Levira, Mr Terry Capper. Mr Capper had previously visited the McLeods premises to observe the process of delivering bread by his employees. The yard foremen and another worker accompanied Mr McMaster when he first started the delivery run to show him the procedures of the delivery run. A supervisor showed him how to use the ramp a couple of years before the incident. 21. Mr Capper stated that he was aware that his employees were using a forklift while delivering bread. Mr Capper stated that Levira had never instructed its employees to use the forklift. 22. There was no supervision by Levira to ensure that Mr McMaster was using the metal ramp while he was undertaking the delivery process on the day of the incident. 23. Mr McMaster had used the forklift on previous occasions at the site. 24. The keys of forklift were kept in the ignition. Mr McMaster, despite having driven a forklift at the site on occasions, did not have a certificate of competency to operate a forklift. Mr McMaster had completed the Certificate of competency in 1973 when he worked for State Rail. Levira asked Mr McMaster to provide a Certificate of Competency to operate a forklift on numerous occasions but he did not provide it. 25. McLeods did have a system in place to check for Certificates of Competency to operate a forklift, but this system was applied only to its own employees. The forklift was immediately impounded by the NSW Police Force at Broken Hill after the incident. Geoff Staples, a Technical Officer of TestSafe Australia, conducted an examination of the forklift. Mr Staples provided a report dated 14 May 2007, which identified that the hand brake cable of the forklift was broken. 26. McLeods did not have a system in place to ensure that maintenance checks were conducted on the forklift. The forklift had been purchased second-hand at an auction on 22 February 2006. It had not been inspected prior to this by McLeods and there had been no inspection, maintenance or repairs conducted on the forklift since its purchase. Mr McMaster did not conduct a check of the forklift prior to its use on 13 April 2007. 27. Levira did not have a formal work health and safety consultation process in place generally. It did have a verbal work health and safety consultation process but no records of this were kept. SYSTEM OF WORK FOLLOWING THE INCIDENT 28. On 3 May 2007, Inspector Keven Pile issued a Prohibition Notice 152950 to cease operation of the forklift until it had been inspected and repaired by a competent person. The forklift was released from NSW Police Force custody in June 2007 but was not returned to the McLeods depot. 29. On 3 May 2007 Inspector Pile issued a number of Improvement Notices including: 7-130053 to Levira regarding a safe system of work. In response, Levira documented a safe work procedure for delivering and unloading bread. It also had a new metal ramp constructed and installed. 7-130050 to Levira regarding licensing of forklift operators. In response, Levira improved its existing system of ensuring that employees have a Certificate of Competency or were on a log-book by keeping records of copies of Certificates of Competencies. 7130047 to McLeods regarding licensing of forklift operators. In response, McLeod implemented a system to ensure that employees have a Certificate of Competency or are on a log-book. McLeods also developed and implemented a system to ensure that unauthorised persons do not access the forklift. 7130035 to McLeods regarding forklift maintenance. In response, McLeods implemented a system to ensure that forklifts are inspected, maintained and daily pre-operational checks are conducted and that records of same are maintained. 11The prosecutor also tendered the following documentation: (1)31 colour photographs taken by Senior Constable Ian West on 13 April 2007, Inspector Kevin Pile taken on 18 April 2007 showing the site, and Mr Geoff Staples of TestSafe Australia taken on 1 May 2007 depicting the scene of the incident, the Nissan Forklift Truck with the placement of the extension of the tines; the forklift with a broken handbrake cable; (2)two NSW Police sketch of the scene of the incident. (3)Document titled "Broken Hill Freight Centre Procedure for Mildura run" received by WorkCover on 2 July 2007. (4)TestSafe Australia Report No 29053 dated 14 May 2007 prepared the WorkCover Authority of New South Wales, Dubbo District office in respect of the forklift accident investigation.

Defendant's evidence 12Mr B Docking of counsel, who appeared for the defendant, read affidavits of Mr Craig Alan Thomas, a director of the defendant and William Gordon McMaster.

Evidence of Mr Thomas 13Mr Thomas stated that he and Mr Rodney John O'Brien were the directors of the defendant which had been in operation since about May 2003. Mr Thomas is 39 years of age, single, with two children. He holds a trade certificate as a qualified baker/pastrycook. 14Mr O'Brien is aged 43 years, divorced with a 22 year old daughter. He also holds a trade certificate as a baker/pastry cook. 15The defendant had a delivery agreement with Goodman Fielder to deliver bakery products around Broken Hill after products were delivered to the site. Levira had a contract with Goodman Fielder to deliver bread from Mildura to the site. 16The defendant also makes and distributes pies, pastry goods, sausage rolls and a small variety of cakes. At the time of the incident it had eight full time employees including its two directors. At the present time, it has seven full time employees comprising one driver, five bakers (including the directors) and one office manager. 17Mr Thomas stated that the forklift involved in the incident had been purchased at an auction from the local Ice Works when it closed down. This was on 22 February 2006. He said the forklift was not really needed as the company already had another forklift at the time. 18The forklift was not in use by the defendant at the time of the incident because the need to use it as a backup had not arisen for a number of months. The defendant very rarely used the forklift. He stated that the defendant did not and does not drive any forklift down the footpath or outside the premises where the incident occurred. The defendant was not aware of any mechanical defects with the forklift. 19Mr Thomas stated that before the incident he discovered that drivers from Levira had been using the forklift. He was aware that on one occasion Mr McMaster had driven the forklift through a wall. This occurred in January 2007. He stated that he subsequently contacted Mr Capper of Levira and advised him that none of his drivers were allowed to use the defendant's forklifts for their operation as they had their own ramp for this. Mr Capper said "I'll speak to drivers about not using the forklift and will get someone out to look at the hole" (in the wall). 20During the afternoon, a few weeks later, Mr Thomas saw one of Levira's employees using the forklift loading what appeared to be the last of that day's empty crates. This work is carried out during the afternoon of each day so that the empty dollys can be taken back to Mildura to reload for the following morning's deliveries. 21Mr Thomas stated that he had a conversation with the driver and advised him that he was not supposed to use the forklift but use the ramp and that he was going to inform Mr Capper, which he did. He said Mr Capper informed him that "I will speak to the guys and tell them to use the ramp". 22Mr Thomas stated that after these conversations with Mr Capper he had no reason to believe that Levira's employees were using any of the defendant's forklift during early morning deliveries. He stated that he believed that he had given Mr Capper a blanket direction or prohibition that the bread delivery workers should not use any of the company's forklifts and this applied whether or not the employees of Levira were trained or unqualified in forklift operations. 23Mr Thomas stated that the directors of the defendant were not aware that the forklift was still being used as bread was delivered after business hours in the early hours of the morning and there was no physical indication to suggest that either forklift was being used. 24Mr Thomas' evidence was that on 19 August 2013, he had a discussion with Mr Russell Mullen, a former employee of Levira who told him that he recalled being informed by someone in Levira's yard not to use the forklift at the defendant's site. 25Mr Mullen is currently undergoing chemotherapy treatment and the defendant therefore chose not to call him to give evidence. 26Mr Thomas stated that it did not occur to the defendant that leaving the keys in the forklift was an issue as Levira had been prohibited from using any forklift owned by the defendant. His evidence was that the defendant required its employees if they used a forklift to hold a licence. It ensured that only competent licensed employees used a forklift. 27After the incident, the defendant prepared a register containing the names of its employees that were qualified to operate a forklift. This was as a result of a WorkCover improvement notice issued after the incident. 28Mr Thomas described being informed of the accident and stated that he was shocked to learn what had occurred. He stated that he had not seen the extra long sleeves on the forklift tines before the accident. He subsequently asked Mr Capper about the sleeves on the forklift and he was advised that they belonged to him. 29Mr Thomas stated that although he believed that the defendant's equipment should not have been used by outside contractors who were not qualified or experienced to use the equipment, the defendant and its directors accepted responsibility and pleaded guilty to the charge and the particulars in the amended application for order. 30Mr Thomas expressed his regret and sorrow for what happened to Mr McMaster. He stated that the directors were very concerned for his wellbeing and that he made phone calls to his daughter and to Mr McMaster while he was in Adelaide Hospital. The defendant continued, through its directors, to contact Mr McMaster regularly to check on his condition. 31Mr Thomas stated that he contacted Mr McMaster recently and he came to see him and Mr O'Brien on 15 August 2013. His evidence was that Mr McMaster said that he knew he was not supposed to use the forklift but that the ramp was so damaged that he used it. Mr McMaster said that the ramp was unsafe. He said that Mr McMaster informed him that he had almost made a complete recovery from his injuries. 32Mr Thomas stated that prior to the accident, the directors would have monthly safety meetings with their employees. Minutes were kept of these meetings. Employees were encouraged to provide input and health and safety needs of the defendant. Employees' health and safety were and continued to be reinforced and Safety policies and signs were and are located within the workplace. There have been no prior accidents at the defendant's site. Mr Thomas stated that the defendant had used trucks with lifters to load and unload its products and supplies which were carried out in a safe manner. 33After the incident, the forklift was not returned to service and has not been returned to the defendant's workplace. The defendant put in place a system where all keys are now removed from forklifts and placed in a locked drawer in the office that only the defendant's employed forklift operators can access. As a result of a WorkCover improvement notice, the defendant introduced a pre-operation checklist to be used when a forklift is in operation and to record maintenance checks. The defendant reinforced safety with all its employees and engaged an occupational health and safety expert to provide a report. It adopted all but one of its recommendations. The one recommendation that has not been adopted is a low risk issue with a mixer that the expert acknowledges is almost impossible to implement. The only persons who use the mixer are the directors. 34Mr Thomas was aware that Levira had replaced the old ramp with a large new ramp. 35Mr Thomas set out the defendant's community involvement. He stated that the defendant was responsible for numerous sponsorships for charities, sporting clubs, community events and community non profit organisations, such as schools, Carols by Candlelight, Lifeline, St Vincent de Paul, Lions Club, and Legacy. The defendant donates 30 - 40 loaves of bread to junior football clubs on a weekly basis during the football season. Bread is also donated to other annual events including Carols by Candlelight. The defendant also donates bread to St Vincent de Paul on a daily basis to assist with meals for the homeless and underprivileged people. This involves approximately 50 loaves of bread per week. Whenever there is a fundraising event in the Broken Hill area, the defendant donates products to assist. 36Mr Thomas stated that it was difficult to put a precise figure on the value of these donations but thought it would be close to $15,000 per annum. He annexed letters of thanks from the Broken Hill City Council Disability Services and Community Options, Club Legion dated 23 March 2013; Broken Hill Mixed Indoor Bowls Association dated 12 June 2013 and Broken Hill NF Community and Children's Tumour Foundation of Australia dated 15 June 2013. 37Mr Thomas also annexed to his affidavit impressive references obtained from Broken Hill Church of Christ dated 13 August 2013, St Vincent de Paul dated 20 August 2013 and Lifeline Broken Hill dated 13 August 2013. Each reference described the active involvement of the defendant in the Broken Hill community and welfare activities. 38Mr Thomas stated that the defendant and its directors co-operated with WorkCover during its investigation into the incident and complied with improvement notice issued by WorkCover.

Evidence of Mr McMaster 39Mr McMaster stated that he is a haul truck driver and has been employed by Basin Sands Logistics Pty Ltd ("BSL") for approximately three years. He described his work with BSL and his hours of work. 40Mr McMaster set out his duties and hours of work with Levira. He stated that on the morning of the accident he recalled arriving at McLeods at approximately 2.41am. There were no other employees at the Bakery at that time. He had been using the old forklift at the bakery for approximately six months before the incident because the ramp that had been supplied by Levira was not operational. 41Mr McMaster's evidence was that he had complained to Mr Capper and his son-in-law, whose name he could not recall, many times about the ramp and that it needed to be replaced. His employer would only arrange to have it repaired and after a short period of time the pop rivets would come out and he could not use it. He stated he much preferred to use the ramp if it was in good condition instead of the forklift because it took only 5 - 10 minutes to complete the unload work, by comparison with the forklift which would take 30 or more minutes to complete. The forklift also created a lot of noise. 42Some time before the date of the accident, he stated that he had taken a set of forklift sleeves from his employer's premises. This was due to the fact that the forks on the forklift were too short for the unloading of the pallets of bread and the sleeves when they were on the truck. He kept the sleeves in the truck and did not leave them at the Bakery. 43Mr McMaster described that after arriving at the site he had removed at least two dollys of bread before the accident. He had left the forklift idling on the flat ground with the footbrake on without any incident. 44In preparation for a further lift, he had parked the forklift and lifted the tines to roughly the level of the tray of the truck. He did this within the delivery bay section of the bakery, as it was a noisy process. Approximately three weeks earlier, there had been noise complaints from neighbours. Lifting the tines within the bakery delivery area created far less noise for the neighbours than if he had carried out the task on the street. 45As he was moving two or three dollys of bread to the edge of the truck in readiness for the forklift, he recalled being hit by something very heavy from behind. Mr McMaster stated that at the time of the accident, although he could not recall who from his employer had told him, he was aware that he was not supposed to use the forklift. However, as the ramp was not operational he thought he had no other choice. He annexed four photographs taken on 17 September 2013 that showed the position that he had left the forklift prior to the accident. The forklift used in the photographs was a different and smaller forklift to the one he was using when the accident occurred. 46Mr McMaster stated that since the accident he had made an almost complete physical recovery from the injuries that he sustained. His evidence was that he did not believe that the directors or McLeods were responsible for the accident and what happened to him. He had previously been told not to use the forklift by somebody from Levira. He acknowledged that he did not put the handbrake on because he believed that it did not work, although he did put the footbrake on. He observed that he had left the forklift tines in the raised position and placed the sleeves on the tines. He stated that at the time, it did not occur to him that the forklift could vibrate and move off the flat area where he had parked it and rolled down the ramp and hit him. 47Mr McMaster observed that he did not believe a fine should be imposed on the defendant, but understood that this was a matter for the court.

Relevant principles 48The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: "[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' "

Consideration 49Counsel agreed that the primary consideration in sentencing requires a determination of the objective seriousness of the offence in accordance with the above principles. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence. 50The charge and the particulars establish the parameters in which the objective seriousness of the offence should be considered by the court: Morrison v Powercoal (No 3) [2005] NSWIRComm 61 (at [76]). 51The particulars of the charge allege that on 13 April 2007 the defendant failed to assess and manage the risk of a forklift colliding with a person and crushing him, in particular, Mr McMaster. 52The risk manifested itself through the failure of the defendant to ensure that keys to the forklift were secured so that unauthorised persons could not access or operate the forklift and that the forklift was properly maintained, in particular, that the handbrake was in working order. 53These were the two simple steps that should have been taken in order to ensure the safety of Mr McMaster and remove the risk to his health and safety. The forklift could simply not have been operated if the keys were not available. Furthermore, the forklift could not have, in the circumstances, where it was parked, collided with Mr McMaster and crushed him if the handbrake was working. 54There are four significant matters which require consideration and determination in deciding the appropriate penalty for this offence. The first is the degree of culpability for the breach of the occupational health and safety that can be attributed to the acts or omissions of the defendant. It is necessary to deal with this issue in order to decide the gravity of the offence to which the defendant has pleaded guilty. 55The second issue is linked to the first and involves an assessment of the degree of culpability that can be attributed to Levira and Mr McMaster, arising out of the relevant acts or omissions. 56The third and fourth issues are also related. They involve a determination of the relevant factual questions, or questions of fact and degree relating to the subjective circumstances of the defendant and how any conclusion in that regard should be factored into the final assessment of the relevant penalty. 57In dealing with the first of these questions, the failure here is essentially a failure to guard against the use of the forklift in colliding with Mr McMaster and crushing him. The defendant's evidence was that Mr McMaster was told not to use the forklift after it became aware he was using it when he drove the forklift through a wall. An instruction was given by the defendant which failed to ensure Mr McMaster's safety as it relied on adherence to the instruction. 58The risk could have been guarded against in a number of ways, but simply telling someone not to use the forklift was not a matter that guaranteed or ensured safety. As the particulars state, the opportunity to use the forklift was available when keys were left in the ignition, irrespective of the competence or otherwise of non-employees to drive a forklift or operate it. 59The ramp which was provided by Levira was not operational. This fact had been brought to the attention of Levira, who was aware that the forklift was being operated by Mr McMaster. The further step that should have occurred to avoid the risk was to ensure that the handbrake was in working order. The defendant failed to ensure that the forklift was properly maintained. 60Mr Docking submitted that errors or negligence of the person not in the employment of the defendant should reflect on the degree of culpability for the purposes of sentencing: Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]. In this matter, Mr McMaster used the forklift knowing that the defendant had prohibited its use at the depot. He used it knowing that the handbrake did not work on 13 April 2007. 61Furthermore, Mr McMaster's actions led to the instability and imbalance of the forklift in circumstances where the tines were left raised at truck tray height instead of lowering them close to the ground when the forklift was left unattended. Secondly, Mr McMaster placed removable 1230mm slippers over the fixed tines. The forklift was also left idling which permitted it to vibrate and move in an area where the defendant had never used a forklift. 62In respect of causation, the proper approach to the distinction between the ultimate event and the underlying risks has been the subject of comment in a number of cases. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8, Walton J, stated at 27 - 28: "The standard of foreseeability is objective, but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 364; The University of Sydney. In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s 15 of the Act, that (at p7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." " 63In my view, the above observations of his Honours are applicable in this case. While the accident resulted from a combination of events, the defendant was aware that from time to time Levira employees were using the forklift. However, the keys were left in the forklift and the handbrake did not work. In these circumstances, the occurrence of an accident of the type, that occurred, was reasonably foreseeable. The prospect of an employee of Levira continuing to use the forklift was foreseeable. It was against this very danger that a procedure was introduced after the incident. That procedure was the locking of the keys to the forklift in a drawer. 64A further factor that should be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred. The seriousness of an injury or a death does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 (at 464); Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 65In Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364, the Full Bench (Wright J President, Walton J Vice-President, Boland J) stated at [33]: "[33] Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case." 66This is a matter, which in my view, could properly fall within the second example referred to by the Full Bench in the above decision. The defendant had been in operation for four years at the time of the incident. On two occasions, Mr Thomas telephoned Mr Capper, the sole director of Levira and complained that his employees were using the forklift. The defendant was entitled to believe that Levira's employees would discontinue using the forklift. However, this court has on numerous occasions, emphasised that an employer must be proactive in its approach to occupational health and safety in respect of both its employees and non-employees. 67It has been emphasised on numerous occasions by this court that an employer must be proactive in ensuring health and safety. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81, Walton VP and Boland J, (Kavanagh J dissenting) stated at [45] - [46]: "[45] The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248. [46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows: "The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." (See also WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; (2000) 100 IR 64 at 722). 68In Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117 at [28], Boland J stated: "It cannot be assumed that because a worker, even an experienced one, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out any possibility that he or she will not place themselves at risk in relation to a dangerous piece of machinery that is not guarded to the maximum possible degree. Workers may act foolishly, as demonstrated in cases such as WorkCover v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52 at [13] and Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 at [70]. That is why the obligations on an employer under the Act require that employer to actively search out and, where it is at all possible, eliminate any risk to health and safety." 69See also Inspector Beacham v Delta Shelving Systems Pty Ltd [2012] NSWIRComm 103 per Staff J at [73]; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 and McLean v Tedman (1984) 155 CLR 306 at 311 - 312. 70Applying these principles, there is no basis to conclude that the conduct of Mr McMaster minimised the liability of the defendant. However, as the Full Bench observed, such matters may reflect on the degree of culpability of the defendant for the purpose of sentence. 71I note that the company had in place occupational health and safety policies prior to the accident and that there had been no accidents at the bakery either before or since the incident. 72Mr Docking also pointed to the extenuating circumstances in which the offence was committed for the purposes of s 10(3)(c) of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"). This section provides: (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: ... (c) the extenuating circumstances in which the offence was committed, 73In addition to the matters to which I have already referred, counsel submitted that a safe ramp was not provided for the removal of the bread dollys, despite Mr McMaster advising Levira that the ramp did not work. 74In addition, Mr Docking submitted that no other person was exposed to the risk apart from Mr McMaster as no other employees worked or were present at the depot at the time of the offence and/or the planned delivery of the bread. The area where the incident occurred was a pedestrian and people free area of the defendant's premises. 75In my view, the offence should be assessed as being at the mid-range of seriousness.

General deterrence 76As to general deterrence, I consider it is appropriate in this case to once again draw attention to the need for employers, contractors, and controllers of premises to be constantly vigilant, and to ensure that employees and non-employees are not exposed to risks to their health and safety through work being carried out which involves the loading/unloading of trucks and the use of forklifts. I include an element in the penalty for general deterrence.

Specific deterrence 77In relation to specific deterrence, I accept, in light of the evidence relied upon by the defendant, that this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. 78As the defendant is still operating, I include a small component in the penalty for specific deterrence.

Subjective factors 79The following subjective factors are relied upon by the defendant to mitigate the offence pursuant to s 21A(3) of the CSP Act 1999 include: (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, ... (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (k) a plea of guilty by the offender (as provided by section 22), ... (m) assistance by the offender to law enforcement authorities (as provided by section 23).

Remorse 80Mr Thomas, on behalf of the defendant, expressed regret and sorrow in respect of the incident. Mr Thomas continued to speak with Mr McMaster after the incident and during his recovery.

Plea of guilty 81The defendant entered a formal plea of guilty to the amended application for order at the earliest possible opportunity: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [75]. In accordance with the principles found in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, I find that the defendant is entitled to a discount of 25 per cent as a result of the utilitarian benefits offered by the plea.

Co-operation 82I find that the defendant fully co-operated with the WorkCover Authority of New South Wales during its investigation of the incident and that it is appropriate to take this matter into account in determining penalty. 83I also find in accordance with the evidence, that the defendant was not a company that disregarded safety matters before the incident.

Good corporate citizen 84I am satisfied in accordance with the evidence of Mr Thomas, that the defendant has demonstrated a commitment to local communities and to various charities. The defendant's reputation as a good corporate citizen as demonstrated by the impressive references referred to in Mr Thomas' evidence is of some relevance in the determination of the overall penalty as a relevant subjective factor. 85The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: "We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area." 86The contribution of other parties to an offence is a matter to be weighed in the consideration of the objective seriousness of the offence: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383 at 434 and 437 and WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 at [61]. 87Mr Docking made an application for the court to exercise its discretion under s 10 or s 10A of the CSP Act. Section 10 and 10A of the CSP Act is in the following terms: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 88The application of this section has been considered by a number of Full Benches of this Court. See WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; (2000) 49 NSWLR 700; Riley v Australian Grader Hire Pty Ltd; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449; WorkCover Authority (NSW) (Inspector Shaw) v Du Pont (Australia) Pty Ltd (2006) 152 IR 68; T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130. 89These authorities provide that s 10 of the CSP Act will be available only in rare and limited circumstances in proceedings under the Act. In Profab, for example, the Full Bench stated at [26]: "Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court." 90Shortly stated, the defendant is required to advance extenuating circumstances in which the offence was committed. This may include evidence as to age, health, or mental condition, all being matters I am required to have regard to pursuant to s 10(3) of the CSP Act, in addition to antecedents and whether the offence was trivial, together with any other matters that the court may regard as relevant to consider. 91In light of the objective seriousness of the offence, and the lack of exceptional or extraordinary matters, there is no proper basis for the exercise of my discretion under s 10 or s 10A of the CSP Act.

Parity 92WorkCover has brought a prosecution pursuant to s 8(1) of the OHS Act against Levira who pleaded guilty to the charge. The sentencing hearing in this matter followed the sentencing hearing in Levira. I imposed a penalty of $80,000 on Levira: Inspector Pile v Levira Pty Ltd [2013] NSWIRComm 78. 93The principle of parity therefore arises and is applicable in this matter. It requires the court to consider whether there are any appreciable differences in the culpability of the defendants: Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160. 94The principle of parity was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302 as follows: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." 95Consistent with the parity principle, it is therefore appropriate for the court in this matter to make reference to the different roles and responsibilities of the offenders. In R v Sukkar [2011] NSWCCA 140, it was observed at [36]: "To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson & Ors v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74])." 96In my view, the defendant's culpability is less than that of Levira. The evidence discloses that the defendant told Levira that its employees were not to use the forklift. This occurred after Mr McMaster had driven the forklift through a wall. Mr McMaster used the forklift knowing that its use had been prohibited by the defendant and that the handbrake did not work. In addition, he left the tines of the forklift in a raised position with "slippers" attached to them that led to its instability whilst it was idling. 97Furthermore, the use of the forklift occurred in the early hours of the morning when none of the defendant's employees were at the site.

Maximum penalty 98The maximum penalty in respect of the defendant is $550,000. Taking into account the appropriate seriousness of the offence, the strong subjective factors referred to earlier, I impose a fine of $50,000. 99The prosecutor seeks a moiety which I propose to grant. The parties have reached agreement in respect of the quantum of costs in the sum of $13,500.

Orders 100I make the following orders: (1)The offence is proven and a verdict of guilty is entered. (2)The defendant is convicted of the offence, as charged. (3)The defendant is fined an amount of $50,000 with a moiety thereof to the prosecutor. (4)The defendant shall pay the prosecutor's costs in the sum of $13,500.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2013