Consideration
129The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the extensive evidence.
130On 1 November 2006, Mr Haertsch, who was employed as a mechanical tradesman by the defendant, was undertaking a scheduled service of an underground mine development drill rig, known as "the Jumbo" when its feedrail rolled when Mr Haertsch removed the overcentre valve, trapping Mr Hammond, an employee of the defendant, against the side wall of the mine.
131The risk to the health and safety of the defendant's employees, particularly Mr Hammond, was caused by a systems failure. The defendant failed to have in place appropriate documentation and/or safe SWP's in relation to the removal of the overcentre valve from the Jumbo. As set out in the agreed statement of facts, the defendant acknowledged the following:
54. Whilst these safe work procedures referred in general terms to safety issues they failed to clearly specify the extreme danger workers could be placed in by movement of the feed rail assembly.
55. Furthermore, they failed to mandate support of the feed assembly and they failed to mandate other workers being clear of the feed rail assembly whilst work was being done, in particular, on the overcentre valve.
56. The safe work procedure for "repair oil leak" indicated that a JSA should be completed as identified and as required.
132The defendant was aware of the relevant risk as its documentation referred to the risks presented by "charged equipment". The defendant's plea also acknowledged its failure in relation to adequately instruct and inform Mr Haertsch in respect of the work that he was undertaking.
133Furthermore, there had not been any particular testing of Mr Haertsch to assess his competency when performing specific tasks. He initially commenced working in the workshop of the mine prior to working underground and had never undertaken the particular task of changing the overcentre valve previously in a mine. There was also a lack of JSA training in October 2006 in a mine.
134The potential risk to safety was addressed in Sandvik's, (the manufacturer of the Jumbo), SWI, but not included as part of the defendant's safe system of servicing the Jumbo. The Sandvik Operation and Maintenance manual relating to the "Hydraulic TB Boom" under the heading "Safety" read:
Warning: Do not remove hydraulic hoses or valves before you are sure that the system is not statically loaded. High-pressure hydraulic oil can cause severe injury. Before removing any hydraulic component or disassembling a cylinder, always ensure that the component in question is not pressurised. This situation is possible even if the rig is stopped and the components are supported so that static pressure is not generated. These components include the overcentre and non-return valves in the boom rotation mechanism, cylinders, and some valve blocks, hoses and pipes. The pressure can be released with, e.g., a bleeder screw, if so equipped; otherwise, the component must be removed with extreme caution when the oil temperature is sufficiently low. In removing the component, it is recommended that the component be covered with, e.g., a cloth in order to prevent the spraying of high-pressure oil.
135Later in the same document under the heading "Disassembly and Assembly Instructions of Rotary Actuator" provided:
The rotary actuator should only be dismantled and reassembled by persons who have been trained how to do this or by experts.
136Under the heading "Dismantling" Sandvik's document provided:
Before starting to remove the cylinder, make sure that the boom is properly supported, and any static loads of the cylinder are removed. Disconnect the hydraulic hoses to the cylinder and plug the open hose ends and cylinder adapters.
137This section was part of "Repair and Adjustment" which referred to the overcentre valve.
138A further Sandvik document headed "Generic Risk Assessment Sudy (sic) for Axera 7 Series Face Drills" (the Jumbo), provided at paragraph 8.3 "Recommendations":
A range of risks have been specified within Appendix Two. It was not the objective of the study to develop detailed risk treatments. Therefore risk treatments for each risk (if noted) need to be developed in detail and confirmed to be a suitable strategy for the management of the risk. Confirmation of allocation of responsibilities for implementing risk treatments should also be made.
139Under the heading "Requirements" it provided:
Procedures shall be supplied by the manufacturer and maintained and developed by owner for the safe isolation and/or energy dissipation.
A person shall not carry out repairs on equipment unless the energy source is isolated and cannot be reconnected accidentally before it is safe to do so.
140Under the heading "Compliance Status" it provided:
Local isolation procedures are the responsibility of the owner.
141The defendant had a "mobile plant, equipment and machinery fit for purpose risk audit" conducted on the Jumbo. Mr Blunt was part of the audit team with Mr Everett.
142Under the heading "Servicing Checklist 1, Section 1", in response to the question, "Is there a copy of the manufacturers operating manual/instructions available?", "Yes" was ticked.
143Under "Section 3", in response to the question, "Are maintenance service manuals/instructions available", "Yes" was ticked.
144Under the heading "Maintenance" the defendant's document provided:
Provision should be made to mechanically support any hydraulically operated components when they are required to be in the raised position for maintenance.
145As I have already observed earlier in this judgment, there was no risk rating undertaken in respect of replacing the overcentre valve on the Jumbo.
146The defendant's "Safe Working Procedure (SWP) for Service Drill" provided under "Procedure/Task Steps": "Complete JSA". Under the heading "Consideration/Hazard" it provided: "As identified and required."
147Under the heading "Purpose" the defendant's document stated:
To provide a mandatory safe work practice in accordance with Pybar policy and the requirements of the -
NSW - NSW Occupational Health & Safety Act 2000
NSW Occupational Health & Safety Regulations 2001
Mines Inspection Act 1901
General Rule 2000
148In respect of a document of the defendant titled "Isolation & Tagging Requirement" under the heading "Authorised Tagger" it provided: "Allow everyone in area to be aware of movements & danger." The document subsequently provided under "Procedure/Task Steps" in respect of "Remove hose or fitting. Note: If a component is raised and is unsupported and you remove a hydraulic hose the component will fall and the hydraulic oil in the hose will spray around under pressure in the work area."
149Mr O'Neil submitted that when properly analysed, the defendant's documents lack specificity in respect of the particular task. Counsel acknowledged that although the defendant's SWP gave some direction, for which the defendant was entitled to receive credit, it was clear from the documentation that the defendant was aware of the particular risk when working on hydraulic components. The risk being an unsupported component dependent upon hydraulic oil would fall if an overcentre valve was removed.
150The defendant's Safe Working Procedure (SWP) for Service Drill under "Isolation and Tagging" and under the heading "Definitions" provided:
Energy - Energy is the driving mechanism for all activity on the site, whether it is equipment, plant and/or systems. Energy sources are essentially gravitational, mechanical, electrical, chemical, thermal, radiation, radiant, hydraulic, pneumatic or stored pressure.
151At paragraph 10.3 the SWP dealt with energised fault finding and repairs procedure. Relevantly, it provided:
Where an energy from the "energised fault finding and repairs" process can impact on other personnel not involved in the "energised fault finding and repairs" process, the plant or equipment shall be isolated from the normal work area and physical barriers will be required to be put in place to ensure no external exposures can occur.
152Sandvik's safe work instruction in respect of "Remove & Replace Rollover Overcentre Valves - Underground" included "ensure all personnel are clear and attempt to start the machine on both diesel and electric". It highlighted the risk of personal injury and provided that the boom and feed beam should be "securely supported on suitable stands." Under the heading "Alerts" the risk included "Death, personal injury or machine damage. Crushing hazard". Symbols were also provided to highlight the risks.
153Mr O'Neil emphasised that the defendant did not have the material contained in the Sandvik documentation as part of its systems. This fact renders the evidence of the defendant that it was impossible to put in place a safe work procedure for every process that may be undertaken in respect of maintenance of the Jumbo redundant.
154The defendant's Audit Report of October 2006 provided under the heading "JSA/Risk Assessment Training":
There was no JSA training conducted for the month of October. Whilst Michael said that it is not practical to do everyone, some should be done each month. There is still quite a few to go through - one point deduction. (This is a reference to a potential score out of 40 in respect of the audit).
155The defendant's "Risk Assessment & Hazard Identification Report" in respect of risk assessments conducted on 25 and 26 May 2006 and compiled by Mr Everett in respect of the mine, was a comprehensive document covering some 50 pages, which dealt with the scope of the risk assessment; its procedure; process; flow chart; matrix and review audit. It also addressed scope of works; the results of the risk assessment and contained a register of additional controls.
156Under the heading "Maintenance" the report referred to the hazard of "live isolation" and under the heading "Causes" stated "Failure to isolate for 'energised live testing.'" The entry under the heading "Consequences" read "Injury - Major" and the entry under "Controls & Barriers" read "CMPL does not comply". Under the heading "Adequate Control Y/N" the letter "N" appeared representing "no".
157Similarly, in respect of the hazard of lifting - supporting under the heading "Causes" it read "Collapse, uncontrolled movement, Fall from height". Under the heading "Controls & Barriers" it provided: "Approved supports (jacks, stands etc.) Procedures, C Safe, Competent Tradespersons, Inspections". Under the heading "Adequate Control" the letter "Y" appeared representing "yes". Clearly, the defendant was aware of the risk that was presented by working with raised live or charged hydraulic equipment.
158Both Mr Rouse and Mr Everett gave evidence that Mr Haertsch was an experienced tradesman. However, Mr Haertsch's record of interview with Inspector Paul Newey on 1 November 2006 is illuminating in this respect. He stated as follows:
Q14. Yep. Ok and you obviously were expecting the boom to roll?
ANS. Well I thought it may have but I didn't know for sure. But I was thinking this might move so I planned which way I was going to go. I had a look around nobody was there so I just kept on working.
Q15. Why did you think the roll over motor sorry why did you think the boom may move?
ANS. Well I wasn't 100% sure that it was I just thought well because I am taking a bolt a valve out of the pressure line that actually feeds it well then there is nothing holding the oil there so well I thought it could move.
Q16. Yep Ok so removing the valve allowed the oil to escape out of the system?
ANS. Yes out of the system and then it rolled.
Q17. And the oil that holds the whole thing in position?
ANS. Well what I can't understand is because I had it, I had it fingered loose and if there was pressure there, there would have been oil coming out (at) you. Know what I mean?
Q18. Yeah, yeah.
ANS. So I really wasn't worried about it moving much at all because I thought if there was pressure there then it would have started creeping and I would have just done it back up again.
Q19. OK, yeah.
ANS. I mean this is what I don't understand. So I just looked around there nobodies round no worries.
...
Q29. Yep. And you've, you have worked on jumbos for a while?
ANS. Yes.
Q30. And that is the normal way that you change the valve?
ANS. Yep. Well I personally have never changed that particular valve. I have never had that problem with them before.
...
Q349. Can you tell me what a JSA is?
ANS. A JSA? If there is a job that is never been done before, like a totally new job, then you have to turn round and so a JSA so as you identify risks that may, may be there or may not be there and then you have to go to figure out a way round them and so as it becomes a safe job.
ANS. Yes.
Q351. Do Pybar do risk assessments?
ANS. Yes.
...
Q353. So you have done JSA's before?
ANS. JSA's before yes.
...
Q355. So is it a common process?
ANS. Oh its common practice.
Q356. With Pybar?
ANS. Oh with every, with every company that I have ever worked for.
159Mr Haertsch did not have a full appreciation of the work that he was undertaking and the likely consequences, although an assumption was made by the defendant that Mr Haertsch was an experienced tradesperson with an understanding of hydraulics, which the evidence clearly discloses is correct. However, in relation to this task, he lacked an understanding of what would occur, as is clearly illustrated at paragraphs 36 - 38 of the agreed statement of facts.
160The defendant's failure was that it did not have in place clear and specific instructions as to how the task of removing the valve could be undertaken without risk to the health and safety of its workers, as set out at paragraphs 54 - 56 of the agreed statement of facts.
161It has been emphasised on numerous occasions by this Court that an employer must be proactive in ensuring health and safety. The obligation upon the defendant is to ensure the safety of its employees. It extends not just to the careful and observant, but to the hasty, careless, inadvertent, inattentive and even foolish: see WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 and the extensive summary of the principles undertaken by Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [181] - [194]. Had Mr Hammond been provided with a well formulated, documented and properly implemented system of safety, there is every likelihood that he would have followed it and the risk would have been avoided.
162Mr Hatcher acknowledged that the defendant's plea of guilty was to the offence and the essential elements of the offence. Senior counsel placed reliance upon the judgment of the Supreme Court of New South Wales, Court of Criminal Appeal in Donald John O'Neill (Moffatt ACJ, Begg and Cantor JJ) (1979) 1 A Crim R 59. That case is authority for the principle that when the Crown accepts a guilty plea to a lesser offence in discharge of an indictment the trial judge ought to treat this as an objection to those facts contained in depositions which appear to support a more serious charge. This authority does not seem to me to be relevant to the present case.
163In this matter, I proceed to sentencing cognisant that the entering of a plea of guilty by the defendant amounts to a confession of guilt and an admission to all the elements and particulars of the offence to which the plea was offered: Woods v R [2008] NSWCCA 83; (2008) 184 A Crim R 108 at 367 per Spigelman CJ (Howie and Latham JJ agreeing). Furthermore, the conduct, which the defendant has admitted by its plea, demonstrates a failure by it to have in place the necessary safety systems required by the OHS Act to ensure its employees' safety.
164Mr Hatcher relied on the evidence called by the defendant to ground a submission that his client were entitled to think that Mr Haertsch was equipped "with the tools" to do his job properly. However, counsel submitted that he was negligent in the way that he approached the task. Mr Hatcher rejected the prosecutor's contention that Mr Haertsch's failures were the responsibility of the defendant. Mr Hatcher submitted that this did no justice to the legislation or the purpose of the legislation, particularly bearing in mind its origin, nor to the approach taken to the legislation since the decision of the High Court in Kirk .
165Counsel provided an extract from a report to the Parliament of New South Wales titled Report of Commission of Inquiry Into Occupational Health and Safety (3 June 1981), conducted by TG Williams Esq Commissioner.
166Counsel referred to the observations of Mr Williams in addressing what was described as item 2 in the Report (at 28). This item read: "The obligation upon employers to provide safe and healthy workplaces; and the obligation for employees to work safely in such places."
167At paragraph 4.20, Mr Williams observed:
There has probably been recognised, at least in the last 50 years, a qualified requirement that employers should provide healthy and safe workplaces. There has not been a corresponding accepted general obligation upon an employee to work safely in his workplace.
168Mr Hatcher proceeded to advance the following submission:
He [Mr Williams] goes on to discuss what happens in the Robens report about that. If one goes back to the Robens report, the Robens report says it's been said that all the duty we are creating does is reassert the common law duty. To the extent there's any doubt about it, we'll clarify it. But the important thing is we are imposing a duty on employees and that has not existed before.
To say that the employer is responsible for the negligent act of his employee, is to put at nought the very purpose of the legislation, which was to remind employees to impose upon employees a statutory duty to act safely in their own interests and in the interests of other employees.
The extent that there is authority in this Court that says the fact that the employee can be negligent proves an employer is culpable, it does no justice to that legislation.
169Mr Hatcher acknowledged that the High Court did not consider this issue in Kirk . However, counsel referred to the High Court's decisions in Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418; (2005) 79 ALJR 1104, particularly the judgment of Callanan J and in Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313. Both of these cases dealt with the specific issue of an individual's negligence.
170I am not assisted by the principles found in these judgments in determining penalty in this matter.
171I am bound, in determining penalty, by the jurisprudence developed by this Court.
172In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143, the Full Bench stated at [15]:
... 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. ...
173The Full Bench then drew attention to the observations of Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Mayne Lighting Pty Limited (1995) 100 IR 247 at [257] where his Honour observed:
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.
174These principles were embraced by the Vice-President in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited [2005] NSWIRComm 1; (2005) 137 IR 462 at [40] - [41]:
[40] I acknowledge that Mr Palmer's recklessness in driving down a steep, slippery slope in a vehicle prone to overturn (in preference to driving down a road purpose built for safety) played an important part in the actual accident and particularly increased the likelihood of a fatal outcome. I accept Mr Aitken's submission that Mr Palmer's behaviour on the day of the accident may be a matter which operates to mitigate the objective seriousness of the offences, but I do not consider that such mitigation would be substantial. In one sense, Mr Palmer's actions may be said to have augmented the objective seriousness: as Mr Agius submitted, despite being aware (to an extent) of Mr Palmer's wilfulness, including occasional lack of care and speeding when driving the ATV, the defendants entrusted him with the responsibility for occupational health and safety at the Farm when he had no particular skills or experience for the role.
[41] In conclusion, and in accordance with the decision of the Full Bench in Riley v Australian Grader Hire at [15], I consider that the defendants should be accorded a reduction of the penalties to be imposed on the basis of Mr Palmer's recklessness on the day of the accident.
175These well established principles are equally applicable to non-employees. Applying these principles, there is no basis in my view, to conclude that the conduct of Mr Hammond minimised the liability of the defendant. However, as the Full Bench observed "such matters may reflect on the degree of culpability of the employer for the purpose of sentencing".
176Mr Hatcher also referred to Mr Haertsch's record of interview with Inspector Newey on 2 November 2006, and in particular, his response to the following:
Q29: Now that you have had time to reflect on the incident what could have been done to prevent the accident?
A: Unfortunately you are asking me something with hindsight, life would have been beautiful if we could have 20-20 vision with hindsight, my job would have been much harder to do but I would have laid the machine over on the ground.
And:
Q59: Is there any reason why a C-Safe form is not filled out for each new task?
A: I think it's just a matter of time. I mean you could be doing a hundred different jobs in a day. That's a hundred bits of paper. I mean it seems irrelevant to fill out a piece of paper to tighten a nut and bolt.
177Mr Hatcher emphasised that Mr Haertsch had been trained in the isolation procedures which he said was to observe whether any other employees were within the vicinity of where the maintenance work was going to be carried out. Mr Hatcher further submitted that in light of his answers during the record of interview on 9 January 2006, Mr Haertsch was aware of the effect of gravity on the motor. When asked:
Q296. OK so when you found no oil you concluded that nothing would move?
ANS. Well, I suspected that something might move because, I am actually tapping into the line, the pressure line right, I suspected something may happen. But everything was showing me that nothing was going to happen. I was quite satisfied that nothing was going to happen.
178Mr Hatcher submitted that there was no reason for Mr Haertsch to suspect, on the materials, that he was going to be prosecuted. Counsel referred to various questions and answers given by Mr Haertsch during the Department's investigation including: "... so you didn't fully understand the intricacies of how the valve block was plumbed into the hydraulic iron?", he answered: "No." And: "So you didn't know exactly?", he answered:
Didn't know exactly what was going on but the thing is whenever you are drilling into pressure lines they are there for a reason, to hold pressure. But that is why you take it out slowly you see if there is pressure on it you can feel if there is pressure on it, you can see if there is pressure on it. If there is pressure on it you just do it back up, find out where the pressure is coming from.
179When asked, "So, I mean have you ever initiated a JSA?", Mr Haertsch answered:
Yeah. The way a JSA works is, if for arguments sake, let's say a bogger is broken down down the hole somewhere. I we've got no option but to tow it to the workshop. Well the first thing I will do is, I will say is has there been a JSA done for this job before? And I will ask that by my leading hand and or my foreman. If they say don't know, no I don't know I say right I have got to do a JSA for that job simple as because it is something that is not an every day occurrence. It is something that many people are going to be involved in doing, and so therefore, and there is a fare reason, a reasonable chance that somebody could get hurt doin' it. So you have got to do it there is no question about it that's what makes me initiate, to do a JSA.
180The evidence was that Mr Haertsch had not performed this particular type of maintenance work before on the Jumbo. He proceeded to carry out the work because there were no signs that there was any pressure indicating that the boom would move. Although he said to Inspector Flowers, he thought it might, he ultimately concluded: "... but in all honesty, I didn't think it was going to move". He said:
... the quickest easiest way I mean if you wanted to support it [the boom] from above would have been to get the other arm and just move it across and run a chain between the two arms and use the other arm as a crane. I mean that's how you change heavy components at the workplace. You use the other arm as a crane.
181Mr Hatcher also cited the decision of the High Court of Australia in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904 and the decision of the Supreme Court of New South Wales, Court of Appeal in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, particularly the judgment of Heydon JA. These cases also dealt with the tort of negligence, personal injury and employer's liability. In citing these cases, Mr Hatcher acknowledged that he was not suggesting that the test to be applied in determining penalty in this matter was the Common Law test that was implied in these authorities. However, counsel submitted:
... merely that much of the learning in this jurisdiction has been from employers duties at Common Law and when the High Court passes upon those duties, it may be of some assistance in approaching the task that the Court is to approach here.
182The basis, apparently, for senior counsel's reference to these authorities was to emphasise that in assessing culpability, the Court:
... is obliged to look at the circumstances, understanding that there were obligations on Mr Haertsch as well. Understanding that the only offence we have been charged with is the risk to Mr Hammond. If it were a systemic risk, if it were in fact a risk flowing from the matters that my learned friend addressed, it wouldn't just be Mr Hammond. The acknowledgement that the risk is limited to Mr Hammond is an acknowledgement that the risk is limited to the circumstances where Mr Haertsch was working. And in our respectful submission that rather confines the culpability of our client.
183The difficulty with this submission is that the amended application for order alleged a failure "to ensure the health, safety and welfare at work of all its employees and in particular Gary Hammond contrary to section 8(1) of the Act." The risk was therefore not limited to Mr Hammond.
184The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27].
185It was foreseeable that Mr Hammond would be exposed to a risk to his health and safety :
(i) if a tradesperson, although with significant experience, but without the requisite competency based training undertook the work to replace to the oversize valve without proper safety systems being in place;
(ii) without undertaking a JSA in respect of work that he had not previously carried out on this particular machine;
(iii) in circumstances where there was no audit carried out in October 2006, and
(iv) if the manufacturer of the machine had foreseen the potential risk as had the defendant but did not have a system in place to ensure the safety of its employees.
186Furthermore, in my view, it is clear that had work safe procedures specifically referred to the dangers workers could be placed in by the sudden movement of the feedrail assembly, the risk to safety would have been avoided.
187The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant in assessing the seriousness of the offence: see Kembla Coal and Coke at [27].
188The defendant prepared a risk audit on the Jumbo. The risk audit made reference to the maintenance manual which had been supplied by Sandvik and it made reference to the role of the OEM. The risk audit referred to the following Standard:
Provision should be made to mechanically support any hydraulically operated components when they are required to be in the raised position for maintenance.
189Mr Rouse's evidence was that since the incident, the defendant had worked diligently to continue to improve its overall safety performance. The defendant made a number of changes to its safety systems and procedures and also made recommendations to CMPL Management concerning the Mine Safety Management Plan. The evidence of Mr Everett was more specific in terms of the steps that the defendant took. It included steps which I have set out earlier that were designed to prevent an incident similar to the one which occurred. The defendant in conjunction with CMPL trialled a vehicle barrier on development drill rigs for the prevention of access by personnel working in the immediate area. The trial ultimately led to a new procedure being implemented without the use of a barrier which introduced a local isolation procedure for working in advance of the forward jacks of the Jumbo. A number of additional changes were made by the QTC Project Team to the Safety Management Plan which I have earlier set out in the evidence of Mr Everett. In my view, there was nothing particularly complicated or impractical concerning these measures.
190Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In the present case, Mr Hammond, as a result of the incident, became a paraplegic.
191The seriousness of the risk , its foreseeability, and the ease of removing that risk, renders this offence to be a serious breach of the OHS Act .
192In addition to the factors relating to this offence, the Court is required in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that included an element of general deterrence.
193I consider it is appropriate to once again draw attention to the need for employers and contractors working in mines, which is a major and dangerous industry in this State, to ensure that risk assessments are undertaken in respect of the maintenance of heavy machinery and equipment, particularly those which involve the use of hydraulics. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty.
194In relation to specific deterrence, I reject the submission of Mr Hatcher that: " This is very much a one off incidence and there is no evidence in my submission warranting specific deterrence to my client."
195I accept that the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. I also accept the evidence of Mr Rouse that although the defendant had systems in place, it accepted that, in effect, the particulars of the defendant's failure amounted to a failure to ensure a safe system of work was in place in relation to the task of removing/undoing the overcentre valve on the Jumbo. I accept, in all the circumstances, that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the OHS Act and for the purpose of compelling the defendant's attention to occupational health and safety issues so that employees and contractors are not exposed to risks to their health and safety.
196Although not advanced by Mr Hatcher, I propose to take into account that the remedial steps taken by the defendant are significant mitigating factors in relation to specific deterrence. The evidence, in particular, of Mr Everett, confirms that the defendant has taken steps to ensure that the circumstances of this incident are not repeated. The defendant has also applied the "outcomes and learnings" from this incident to its other operations to enhance its safety systems and to assist in obtaining a risk-free workplace for employees and those who work presently at the defendant's operations. As the defendant continues to operate in the mining industry, I include an element in the penalty for specific deterrence.
197There are a number of relevant subjective considerations. These include in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ( "CSP" Act ) that:
(I) the offender was a person of good character,
(II) the offender is unlikely to re-offend,
(III) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(IV) 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),
(V) a plea of guilty by the offender;
(VI) assistance by the offender to law enforcement authorities.
198The defendant is entitled to a finding of good corporate citizenship and good character. This is not a case where the defendant showed a disregard to safety and had no established systems in place. As demonsterated by the evidence of particularly Mr Rouse, the defendant at the site:
(a) used experienced and licensed tradespersons who were familiar with the site;
(b) had in place occupational health and safety systems;
(c) conducted safety training courses and sought advice from external safety experts;
(d) had in place a risk management system, although the defendant acknowledged there was a failure to enforce the system at the time of the incident;
(e) had active occupational health and safety committees and other communication and consultation arrangements including commitment to quality, continuous improvement audits, shift handover communications, operations meetings and with safety alerts;
(f) had regular audits;
(g) spent approximately $3 M - $4 M annually on safety and training.
199I also accept that the defendant is committed to further improving and enhancing its safety systems.
200The defendant entered a plea of guilty to an amended charge, which obviated a need for a complex trial that would have, most probably, taken some weeks of court time. In this respect, the High Court of Australia in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, per Gaudron, Gummow, and Callinan JJ, stated:
[23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.
[24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.
Kirby J further stated at [75]:
... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.
And at [77]:
... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge.
201In its guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the Court of Criminal Appeal held at [160]:
...
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
202Spigelman CJ, with whom other members of the Court agreed, said at [155]:
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.
203Wood CJ at CL said at [163]:
... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice.
204In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton stated at [64]:
In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration.
205In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 at [47], Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea.
206I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton ; R v Gorman, and Wambo Coal Pty Ltd. See also generally Cameron v The Queen; R v S Y & Anor [2003] NSWCCA 291.
207I note that the defendant co-operated with the Department in respect of its investigation.
208The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (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.
209I therefore take into account the assistance provided to Mr Hammond after the accident and in respect of his return to work, together with the support given to his family, as earlier set out in the evidence of Mr Hammond and Mr Rouse. The level of support, both financial and personal, was of a standard rarely experienced by this Court.