Inspector Robert Littley v Tieman Industries Pty Ltd

Industrial Relations Commission (NSW)|1994-05-20|Before: Kavanagh J, Fisher CJ, Maidment J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Robert Littley v Tieman Industries Pty Ltd [2004] NSWIRComm 130 Prosecutor: PARTIES : Inspector Robert Littley Defendant: Tieman Industries Pty Ltd FILE NUMBER: IRC1673 of 2003 CORAM: Kavanagh J CATCHWORDS : s15(1) of Occupational Health and Safety Act 1983 - guilty plea entered - failure to provide safe system of work - principles of objective seriousness, subjective features, general and specific deterrence - offence very serious - good industrial record - defendant found guilty - penalty imposed - costs as assessed or agreed LEGISLATION CITED : Occupational Health and Safety Act 1983 Crimes (Sentencing Procedure) Act 1999 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Inspector Louise May v McDonalds Australia Limited [2002] NSWIRComm 179 Ferguson v Nelmac (1999) 92 IR 188 Tyler v Sydney Electricity (1993) 47 IR 1 CASES CITED : Haynes v James Glass and Aluminium Pty Limited (unreported decision of Fisher CJ, CT91/772-775, 20 May 1994) WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision of Maidment J, CT1062 of 1993, 26 November 1993) Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 R v Sharma [2002] NSWCCA 142

HEARING DATES: 05/18/2004 DATE OF JUDGMENT: 06/25/2004

Prosecutor: Mr P.M. Skinner of counsel Solicitor: Ms D. Trembath Phillips Fox LEGAL REPRESENTATIVES: Defendant: Mr C. Barton Solicitor Freehills

JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 25 June 2004

IRC1673 of 2003 INSPECTOR ROBERT LITTLEY v TIEMAN INDUSTRIES PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 130

1 This prosecution is brought by Inspector Robert Littley of the WorkCover Authority of NSW against Tieman Industries Pty Limited. The prosecution issued under s15(1) of the Occupational Health and Safety Act 1983 (the OHS Act).

2 It is alleged the defendant breached s15(1) of the Occupational Health and Safety Act 1983 in that the defendant failed: to ensure the health, safety and welfare at work of its employees at the premises, in particular Andrew Bancroft, contrary to Section 15(1) of the Occupational Health and Safety Act 1983.

3 The particulars of the charge are: The Defendant, Tieman Industries Pty Ltd (ACN 004 517 953), an employer, breached Section 15(1) of the Occupational Health and Safety Act 1983 on 5 April 2001 at premises located at 80 Hartley Road, Smeaton Grange, in the State of New South Wales in that it failed to ensure the health, safety and welfare at work of its employees, in particular, Andrew Peter Bancroft. Particulars of the Defendant's breach are: 1.1 Failure to adequately provide a system of work that was safe and without risk to health in relation to the installation of Tieman model 714H hydraulic dock leveller (dock leveller); 1.2 Failure to adequately secure the steel deck of the dock leveller whilst a person was situated under the steel deck during the bleeding operation; 1.3 Failure to conduct an adequate risk assessment in relation to the installation of the dock leveller.

5 An Agreed Statement of Facts was tendered which reads as follows: 2. By the operation of Clause 13, Division 3 of Schedule 3 the Savings and Transitional provisions of the Occupational Health and Safety Act 2000 (the Act) Part 7 of the Occupational Health and Safety Act 2000 (Criminal and other proceedings) is extended to proceedings in connection with the Occupational Health and Safety Act 1983 (the former Act) in respect of offences committed against the former Act before its repeal and applies whether any such proceedings are pending on the repeal of the former Act or whether such proceedings are instituted after the repeal.

The Prosecutor has conducted investigations into the circumstances surrounding an accident which occurred on 5 April 2001 at 80 Hartley Road, Smeaton Grange, in the State of New South Wales (the premises) in which Andrew Peter Bancroft (Bancroft) was injured and from those investigations is able to state the following either from his own knowledge or upon information and belief. 4. As at 5 April 2001, the Defendant: 4.1 was engaged by Coles Myer Logistics Pty Limited to install hydraulic systems into dock levellers at the premises; 4.2 employed Bancroft as a mobile service technician; 4.3 employed Rodney Aggett (Aggett) as a team leader service technician; 4.4 employed Nelson Brown-Hill (Brown-Hill) as a service technician and 4.5 employed Darren Walters (Walters) as a service technician. 5. On 5 April 2001, Bancroft, Aggett, Brown-Hill and Walters attended the premises to install the hydraulic systems as part of the commissioning of 17 Tieman model 714H hydraulic dock levellers (dock levellers). The steel decks and frames of the docks had been installed previously. 6. Prior to 5 April 2001 Bancroft, Aggett, Brown-Hill and Walters had met with Tieman Service Supervisor, John McGinnes to review and discuss the work plan, scope of work and the installation procedure to be carried out, in relation to the commissioning of the dock levellers at the premises. 7. On arrival at the premises on 5 April 2001, Bancroft, Aggett, Brown-Hill and Walters participated in a site induction carried out by Coles Myer Pty Limited in relation to their work at the premises. 8. As at the time of the incident reported in paragraph 14, Bancroft, Aggett, Brown-Hill and Walters had completed the installation of the hydraulic systems and the commissioning of several docks since their arrival at the premises that morning. 9. On 5 April 2001, at approximately 1:30pm Bancroft, Aggett, Brown-Hill and Walters were installing the hydraulic system as part of the commissioning of a dock leveller at Dock 36 at the premises. 10. Bancroft was carrying out a routine task known as bleeding the ram hydraulic cylinder as part of the installation of the dock leveller (bleeding operation). The hydraulic cylinders were supplied to the defendant by EHI Fluid Power Pty Ltd (EHI). The bleeding operation was carried out in accordance with EHI's hydraulic installation procedure, and was the last step in the installation process. 11. A safety prop was permanently attached to the dock leveller. There were also two other supporting devices (Acrow Props) which were placed under the steel deck at various times during the installation procedure. The purpose of the safety prop, together with the two Acrow props, was to support the static load of the steel deck during maintenance operations. The safety prop was not designed or intended to withstand dynamic force. When using the safety prop, the safety prop would be extended from the horizontal position to the vertical position, and the steel deck would then be lowered onto the safety prop. 12. During work carried out prior to the bleeding operation, the steel deck was elevated to approximately ¾ of full extension and supported by the two Acrow props. Prior to the commencement of the bleeding operation the two Acrow props were removed and the steel deck was fully extended by operation of the hydraulic arm. This was the procedure the Defendant had used for the other deck levellers that were installed at the premises earlier that morning. 13. Bancroft was sitting in a formed concrete pit area, under the steel deck of the dock leveller, when he manipulated the grub (or bleed) screw in order to remove air from the hydraulic system. The safety prop was extended, however the steel deck was raised above, and was not resting on, the safety prop. 14. While Bancroft was sitting under the steel deck, the steel deck unexpectedly dropped rapidly and quickly from its fully extended position. There had been no prior warning that this was going to happen. Bancroft was trapped in the area between the steel deck and the concrete floor, doubled over with his head on his knees, and the steel deck weighing on his back. 15. The steel deck dropped due to a catastrophic failure of the hydraulic system. 16. Immediately after the incident, Aggett, Brown-Hill and Walters attempted to lift the deck to free Bancroft, and they managed to lift the deck slightly. Other persons at the premises came to Dock 36 and assisted in lifting the steel deck to the point where a Acrow prop could be put in place to keep the steel deck in a slightly raised position to relieve some pressure off Bancroft. A forklift and Abbey crane were then used to lift the steel deck off Bancroft and more Acrow props were placed under the steel deck. Approximately 15 minutes later emergency services arrived and commenced treatment at the scene. Approximately 20 to 30 minutes later Bancroft was conveyed to the Prince of Wales Hospital by helicopter. 17. Bancroft suffered severe and permanent spinal damage, and is now confined to a wheelchair and unable to walk. 18. On 5 April 2001 Inspector Egan attended the premises and inspected the site of the incident. At the time of Inspector Egan's inspection: 18.1 The opening into the warehouse was identified as the Dispatch Area Dock 36. It consisted of a doorway that measured approximately 3.12 metres in overall height by 2.16 metres wide. The pit opening for the area to be investigated measured approximately 0.52 metres high by 2.16 metres wide by 4.04 deep back under a steel plate. 18.2 A Tieman Dock Leveller Model No. 714H was installed in the pit opening. The purpose of the dock leveller was to provide a firm stable platform for forklift trucks to access the load area of semi trailers for deposition or removal of goods from the warehousing storage. 18.3 A forklift truck was located in front of the dock leveller, which had been utilised to lift the dock leveller steel plate off Bancroft. 18.4 A blue coated steel prop device was not in position and hanging down vertical to the normal position. A bolt had sheered off at the bolt head and nut, with the bolt shank still in position. 18.5 The dock leveller is a constructed angle steel frame, identified as the hydraulic leveller base frame assembly and a front angle assembly. 18.6 In relation to the front angle assembly, a bolt had been placed into four pre-drilled holes of approximately a 12mm diameter. The holes of the front angle assembly retain the body of a 12-13 mm bolt. The holding nut was located in front of the angle assembly bolt head was located on the paved area below the angle assembly. The bolt shank was still retained within safety prop assembly. 18.7 The dock leveller deck assembly was elevated to 22 degrees above the horizontal. The deck plate was in satisfactory condition and repair. 18.8 Electrical fittings and hydraulic pump for operating the steel plate deck to its various positions appeared to be in satisfactory condition and repair. 19. Improvement notices 219665 and 219666 were issued to the Defendant and Coles Myer Logistics Pty Limited on 5 April 2001. 20. It was agreed by both companies that no dock leveller work was to be undertaken on the dock levellers until such time as the work plan was reviewed. 21. On 3 April 2002 the Prosecutor continued the investigation commenced by Inspector Robert Egan on 5 April 2001. The Prosecutor visited the premises on 10 April 2002. 22. The system of work provided by the Defendant included installation/conversion/set up procedures and the provision of information, instructions and training to Bancroft, Aggett, Brown-Hill and Walters that required the steel deck of the dock leveller to be raised to its full extent and be supported by the hydraulic system only (without the benefit of props to secure the deck in the fully raised position) whilst the hydraulic system was being bled by a person in the pit area beneath the dock leveller. 23. The Defendant failed to adequately assess the risk involved with the method for installation of the dock leveller, including in relation to the method for bleeding the hydraulic system of the Tieman 1714H dock levellers. 24. Following the incident on 5 April 2001, the Defendant implemented the following safety measures: a) Dock leveller manuals were reviewed to ensure relevant safety information is provided. b) A new safety prop has been designed and installed for use while dock levellers are being serviced, installed and commissioned. c) Bleeding the hydraulic system of the dock levellers is now performed without the need to enter the pit area. d) The bleed screw for the hydraulic cylinder was reviewed, and subsequently changed. e) Employees involved in dock leveller installations/commissioning and service have been trained in new procedures. f) Safety alerts have been issued throughout the Company.

6 Mr P.M. Skinner, of counsel, appeared for the prosecutor. Mr C. Barton, solicitor, appeared for the defendant. An Amended Application for Order and Agreed Statement of Facts were relied upon. The prosecutor tendered a number of photographs of the site including an installation procedure of the Hydraulic Supplier, Hydraulic Dock Leveller E Series Owners Manual, Dock Levellers Installation Manual, Dock Levelling Systems Brochure, D.L. Safety Prop Design Calculation, General Safety Procedures and two further colour photographs.

7 The defendant relied upon the affidavit of Mr Hymie Jechilevsky affirmed on 14 May 2004. The defendant presented in court its senior management personnel. The defendant tendered significant documentary evidence of new procedures it has adopted since the incident directed to better occupational health and safety. It placed before the court Employee Information Packs, Revised Installation Instructions, Outline of Risk Management Training Programmes, The Employee Safety Book and its Job Safety Analysis Training accreditation procedures.

8 In consideration of penalty the Commission in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it 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" . . . 9 In an assessment of the gravity of this offence, a number of particular features must be addressed.

10 Mr Bancroft, a service technician and a man in his 20s, was part of a service team carrying out the routine task of bleeding the hydraulic cylinder, which manipulated the steel dock, as part of installing the dock leveller system to move the dock up and down.

11 The steel deck was being supported by a safety prop and the hydraulic system. The procedure required the bleed screw to be "loosely fitted" in the deck cylinder. At that point, the pump was started. The deck would then rise to its full limit. If there was insufficient pressure in the hydraulic system for any reason, the dock leveller would not rise above the safety prop.

12 Once the deck was raised to its full limit, and all air was expelled out of the cylinder, clear oil (ie oil without air) would then flow from the bleed screw. At this point, the bleed screw would be tightened and closed, the pump stopped, and the deck would normally, slowly, hydraulically lower to sit safely back on the safety prop.

13 Mr Bancroft went into the pit under the steel dock to manipulate the grub (or bleed) screw on the hydraulic system. Whatever the cause, perhaps the screw exploded off, the hydraulic arm failed and the steel dock collapsed with Mr Bancroft crushed underneath it. Although there was a steel prop underneath the steel dock it was never intended to hold the might of a steel dock in full fall.

14 The defendant failed to provide a system of work that was safe and without risk in relation to the bleeding operation of the hydraulic system at the Smeaton Grange site. It did not identify the risk presented by a catastrophic failure of the hydraulic system during the bleeding operation whilst the steel deck was raised and supported only by the hydraulic system and especially in circumstances where an employee in the performance of his task was required to place himself under the steel deck.

15 As to the objective seriousness of the offence, the defendant submits for the court's consideration in making its assessment: · the hydraulic cylinder was supplied to the defendant by EHI Fluid Power Pty Ltd. The bleeding operation was being carried out in accordance with EHI's hydraulic installation procedure;

· whilst Mr Bancroft was working under the steel deck of the dock leveller, and when the steel deck unexpectedly dropped from its fully extended position, there had been no prior warning that this was going to happen;

· the steel deck dropped due to a catastrophic failure of the hydraulic system. The reason why this occurred has never been established.

16 The defendant submitted generally the risk presented by a catastrophic failure of the hydraulic system during the bleeding operation whilst the steel deck was raised and supported only by the hydraulic system has not been identified.

17 As to any foreseeable element to this offence, the defendant submits it did not wilfully ignore a known or obvious danger.

18 I accept that this offence does not represent a foreseen event but I find an element of foreseeability to the offence.

19 The Manuals on the operation of the steel dock leveller which was being made operational, under "Safety Guidelines" warned "Do not move or use the dock levelling device if anyone is under or in front of it" and generally warned "safety prop be installed to prevent lowering of dock leveler (Note: Prop must be fitted into correct location to prevent accident)". During maintenance, it was clear any full fall drop of the steel platform would cause the steel strut prop to stress and collapse thus providing no support for the steel deck.

20 While the nature of these warnings was general, Mr Bancroft was required to perform his allocated role, which involved moving the dock levelling device, by going under the steel deck and into the pit. He was afforded no protection in what was already identified as a dangerous situation - namely working in the pit while the dock levelling device was operational. Sadly even the type of injury suffered was identified in the Company's Manual as a risk of a "crush" injury. Mr Bancroft suffered a paraplegia injury.

21 In the circumstances, I find an element of foreseeability to this offence.

22 It is relevant to note in a consideration as to the gravity of this offence that Mr Bancroft suffered serious injuries (Inspector Louise May v McDonalds Australia Limited [2002] NSWIRComm 179 at [45]).

23 While the gravity of injury arising from the breach does not of itself dictate the level of penalty, the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President said in Ferguson v Nelmac (1999) 92 IR 188 (at 204): . . . where a fatal injury has occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious.

Wright J, President endorsed the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant. . . . 24 The potential risk, identified as a "crush injury" flowing from this breach of the Act in the failure to provide a safe system of work, became a reality. That reality is reflective of the serious nature of the offence.

25 In determining the objective seriousness of the offence, I take into account an element of foreseeability to the risk of injury, the defendant's awareness of a risk in requiring an employee to enter a pit under a steel deck when the hydraulic system was in motion and find this a serious offence. 26 In consideration of penalty, a number of subjective features to the offence have been placed before the Commission in Court Session. In Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval, the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

27 The company, Tieman, was founded by two brothers, Neil and Gordon Tieman in 1953. Since that time, Tieman has carried on the business of manufacturing and supplying tankers and material handling products, for the safe and efficient movement of substances, goods and people.

28 The defendant's business operations include the manufacture and supply of Bulk Liquid Road Tankers; Stainless Steel Tankers for carrying dangerous chemicals, milk, wine, bitumen and water; Aluminium Tankers for fuel; Special Aluminium Aviation Tanks and heavy duty Steel Tankers for remote places like Papua New Guinea. Tieman also manufactures and supplies Materials Handling products like Freight Hoists for safely lifting goods from one level to another; Loading Dock equipment for safe, efficient Loading Docks; Scissor Lifts for all types of safe lifting solutions; Tailgate Loaders for increasing efficiencies and safety when loading and unloading goods from vehicles; and Vehicle Access Lifts to assist in the safe transporting of people with disabilities or limited mobility throughout the community. Tieman also operates a mobile service division.

29 The defendant's Head Office and its main tanker manufacturing activities are carried out at Keon Park in Victoria. It also has a materials handling manufacturing facility at Campbellfield in Victoria. In addition, Tieman operates branches at Milperra in New South Wales, Wingfield in South Australia and Eagle Farm in Queensland.

30 The defendant was contracted by Coles Myer Pty Limited in 1998 to install 76 dock levellers (model 714) at the Coles Myer Logistics Warehouse site at Smeaton Grange in the south west of Sydney. At that time, Coles did not require all of the dock levellers to be operational and instructed the defendant to install 59 operational dock levellers and the remaining dock levellers were installed with frames and decks but without operational hydraulic components.

31 In 2001, Coles asked the defendant to install the hydraulic components on the remaining 17 dock levellers to make them operational. The incident involving Mr Bancroft occurred during the installation of the hydraulic components on one of the remaining dock levellers.

32 The defendant, in the period immediately after the incident, took the following steps: (a) On 10 April 2001, it distributed a letter to all NSW service technicians instructing them not to carry out any work on a dock leveller unless it was resting securely on the safety prop.

(b) On 17 April 2001, it distributed a further document titled "Urgent Safety Alert" advising all of its branches of the incident and the injuries involved. In accordance with the safety actions set out in that document, Tieman required employees to follow approved safety instructions when carrying out the bleeding operation, including ensuring the use of additional props; complete adherence to Tieman's revised procedures; and required personnel to be trained and have a proper understanding of procedures. The Engineering Manager, contacted the hydraulic supplier (EHI) and requested that the design of the bleed screw be modified from a tapered design to a parallel design. The first shipment of cylinders with the modified bleed screw were ordered by July 2001.

The defendant's National Works Director and the National Risk Manager conducted a review of the defendant's Service Manual. As a result of the review a new, comprehensive, training plan for all service technicians was developed in February 2003. There was then a retraining of all service technicians in the new procedure during March and April 2003.

33 The court is persuaded the defendant's endeavours to review and implement a revised occupational health and safety management system demonstrates a significant and ungraded commitment to safe working. I am persuaded and accept the submissions of the defendant that it has "learnt from the mistakes of the past." However, the words of Maidment J in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, CT1062 of 1993, 26 November 1993) are apposite in the circumstances (at 7): Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities. 34 The company has worked with Mr Bancroft and his treating doctor to co-ordinate a return to work plan and to modify the workplace to facilitate his return. The modifications involved the construction of ramps; modifications of toilets in the factory and administration areas; widening of doorways in the factory area; provision for Mr Bancroft's needs during the planning, design and construction stages of the refurbishment of the Service Department office area; and the assignment of a marked, undercover parking space.

35 The defendant created a new role for Mr Bancroft within the company and developed a job description of his new role and responsibilities.

36 There was a significant expenditure of company funds to facilitate these endeavours.

37 Mr Bancroft returned to work in March 2002 at the Milperra premises. He has been provided with a computer and an ADSL broadband connection to enable him access to the defendant's network at his home in order for him to work from home one day each week. The defendant provided $30,000 to enable Mr Bancroft to retain possession of a modified car so that he could continue to travel to and from work. I am satisfied the defendant has endeavoured to alleviate Mr Bancroft's circumstances. I have before me evidence solely from the defendant as to these endeavours. I have accepted that evidence and that the company's motivation is to assist Mr Bancroft.

38 I am satisfied the defendant has implemented an integrated national approach to occupational health and safety. Its National Safety Program, the training provided by the defendant for its employees, the involvement of senior management in occupational health and safety, the role of occupational health and safety committees, reporting mechanisms, internal auditing processes, expenditure on safety measures, its past safety performance and the active guidance it seeks from WorkCover demonstrate the defendant's continuing commitment to occupational health and safety.

39 I accept the defendant now has a genuine commitment to occupational health and safety and that this commitment is reflected in its occupational health and safety policy and procedures.

40 I am further satisfied the expressed contrition of the company has been reflected in the concern shown to Mr Bancroft and the support provided to him in his life's difficult re-adjustment.

41 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the OHS Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. These principles were recently cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) where it was said: the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 42 This is a major company employing 200-300 people Australia-wide and I consider the penalty imposed must reflect as a general deterrent.

43 The defendant, as to specific deterrence, puts a number of facts before the Commission. I have considered the size, nature and duration of the defendant's operations and that it took steps to eliminate the risk of this type of incident occurring again. I acknowledged it always had a strong commitment to occupational health and safety and has in place now a comprehensive system for its management of occupational health and safety risks. I accept it is continuing to develop and improve its policies and procedures.

44 The effect of Cameron v The Queen [2002] HCA 6 on the guideline judgment in R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104 was considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by Statute, namely s22 of the Crimes (Sentencing Procedure) Act 1999, which renders it mandatory that a sentencing judge take into account both "the fact" of the plea of guilty and "when" it was made.

45 The prosecution supports the defendant's submission that in the circumstances this was a plea entered with a utilitarian value. I am satisfied the circumstances reflect an early plea of guilty was entered to the charge and as such should attract a discount for the utilitarian value of the plea in accordance with the guideline judgment in Thomson. I allow a discount of 25 per cent for the utilitarian value of the plea of guilty entered on the charge.

46 The defendant has no prior convictions, therefore, the maximum penalty is $550,000. It operates in a heavy industry environment. The defendant is a company with a turnover of $55 million. It does not plead financial penury but points to a economic downturn and the competitive nature of its marketplace.

47 I take into account the gravity of the offence and the relevant subjective features of the offence as placed before me in mitigation as to penalty.

48 I accept the company co-operated with the WorkCover Authority in its investigation of the breach as charged under s15(1) of the Occupational Health and Safety Act 1983. I acknowledge the discount allowed for the utilitarian value of the plea.

50 The defendant is fined in the sum of $275,000 with a moiety to the prosecutor.

51 The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if there is no agreement, leave is granted to either party to approach the court for final orders as to costs.

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.

At a glance

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Judgment (58 paragraphs)

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Cases Cited (9)