[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) 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 (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
34 The primary consideration, as set out in the above principles, is a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences as set out in the agreed statement of facts and the evidence. On the day of the accident, Mr Morrison, the Mill Manager and Mr Jenkins, the Supervisor of the area of the Mill known as the "horse plant" were attempting to get the feed rollers working on the Simon Roller Mill. The hatch door that allowed access to the rollers of the machine was being held open either by Mr Jenkins or propped with a broom. Mr Jenkins attempted to feel with his right hand whether anything like a nut or bolt may be catching or blocking the feed rollers. The feed rollers started turning and Mr Jenkins went to pull his hands clear. However, his right hand was pulled into the fast driving bottom main rollers. Mr Morrison's evidence that he was unaware of what Mr Jenkins was doing at the time of the accident, although standing beside him, to my mind, strains credulity.
35 The proximity of the employees to the unguarded rollers or "nip point" breached all safety standards which require employers to ensure employees remain at a distance from such nip points.
36 It was the defendants' failure to ensure that there was adequate guarding, fencing and interlocks on the roller mill that gave rise to the risk to the health and safety of the employees, particularly Mr Jenkins. A guard or fencing would have prevented access to the rollers whilst the machine was in operation. The absence of an emergency stop button on the roller mill, or an emergency stop button sufficiently close to the roller mill so that it was in reach of a worker who had become trapped or caught in the machine added to the defendants' failure to ensure a safe working environment.
37 At the time of the incident, Mr Jenkins was unaware of any safe operating procedures being in place for the roller mill or other equipment at the premises and had never been run through any safe operating practices for plant. He was not aware of any risk assessments having been conducted on the roller mill prior to the incident. A s 62 notice seeking documentation did not produce any materials. Mr Morrison's evidence was that every new employee was given a copy of an induction booklet and safety manual. Mr Morrison's evidence is that on 1 August 2005, Mr Jenkins signed an acknowledgement form that he had received and understood the induction booklet. Mr Morrison stated that he recalled giving Mr Jenkins a copy of the safe operating procedure for the roller mill that he prepared in 2003. I propose to deal with this last piece of evidence on the basis that Mr Morrison's recollection is imprecise.
38 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Although there was an induction booklet for employees, it made no reference to operating machines in the Mill. At the time of the accident, there was no documentation addressing the operation, procedures or operator's manual for the Simon Roller Mill. The failure was the absence of adequate guarding, fencing or interlocks on the roller mill which exposed Mr Jenkins to risk. Following the incident, Mr Hall identified that the rollers of the machine were accessible by opening the upper hatch doors and it was possible for injury to occur if they were accessed. Mr Hall also identified that the emergency stop button was not accessible to anyone trapped in the Roller Mill.
39 In respect of foreseeability, counsel for the defendants acknowledged that the machine was not securely guarded because the doors could be opened whilst the rollers continued rotating. This concession makes it unnecessary for the Court to resolve the factual issues about Mr Morrison's awareness of a previous occasion when Mr Jenkins' finger was caught in the machine. Even if Mr Morrison had not been aware of such an incident, the defendant conceded that he should have foreseen the potential for it. See [11] of the agreed statement of facts. I would observe that all safe systems of work should be underpinned by a proper reporting system of incidents.
40 Subsequent to the incident, the corporate defendant installed emergency stop buttons on each side of the roller mill. There was an issue between the parties as to what day this actually occurred, however, I do not see this as a major factor to be determined. The fact is stop buttons were installed within a short period of time after the incident. The prosecutor submitted that because it was a simple step to take, it should have occurred many years earlier. I agree. Mesh was also placed over the feed rollers of the roller mill and a metal lip was attached to the roller mill which prevented access to the main roller. Interlock cut off switches were also installed on both upper hatch doors. These remedial steps were simple and inexpensive to implement.
41 Whilst the consequences of an accident will not, of itself, dictate the seriousness of the offence, the occurrence of serious injury, as has occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32] and the cases referred to therein. See also Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337.
42 It is necessary to assess the degree of culpability for the breach of the occupational health and safety that can properly be attributed to the acts or omissions of the defendants in order to determine the gravity of the offences to which the defendants have pleaded guilty. The failures here are to have proper and adequate guarding of a machine and to provide adequate training, instruction, and information to employees working on or with the Simon Roller Mill.
43 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was readily foreseeable, that access could be gained to the machine while it was operating.
44 The seriousness of the risk, its foreseeability and the ease of removing that risk, renders this a very serious offence. There is also the particular aggravating factor of the serious injury to Mr Jenkins: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
45 In addition to the factors relating to the 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 Aluminium Ltd v WorkCover Authority of New South Wales 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 includes an element of general deterrence. I consider it is appropriate to draw attention once again to the need for employers operating dangerous machines to ensure that such machines are adequately guarded. Mr O'Neil submitted that the penalty should include a significant element for general deterrence. I agree with this submission. It is therefore important that I give appropriate weight to the need for general deterrence in determining penalty.
46 In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendants to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendants from further offending against the Act and/or for the purposes of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety, particularly in light of WorkCover case managing the Mill. The corporate defendant, as described in the evidence of Mr Morrison and Mr Hall has introduced a number of initiatives to avoid an incident similar to this occurring in the future. I include an element in the penalty for specific deterrence.
47 Incidents such as this should not be happening. The very reason that social legislation such as the Occupational Health & Safety Act 2000, and its predecessor, the Occupational Health & Safety Act 1983, not to mention the Factories, Shops and Industries Act 1962 were introduced was to eliminate risks associated with accessing dangerous machines. Guarding of machines with nip points is fundamental to ensuring safety. Needless to say, the legislation applies equally throughout this State. Employers in country New South Wales must ensure the health and safety of employees and avoid occupational health and safety crimes. All employers must remain vigilant so that employees are not exposed to risk to their safety. A man has been seriously injured which should not have occurred.
48 The relative subjective considerations include pleas of guilty at the first available opportunity. I propose to allow discounts of 25 per cent for the pleas of guilty to the charges in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
49 I take into account that the defendants co-operated with the WorkCover Authority in its investigations of the incident, the corporate and personal defendants' activity in the Young district, as stated in the references tendered in the proceedings and the defendants' strong commitment to occupational health and safety since the accident, as evidenced by its ongoing co-operation with WorkCover Inspectors who have made recommendations to improve the occupational health and safety at the Mill. The corporate defendant acted swiftly in implementing modifications to the roller mill after the accident. I also take into account the defendants' genuine remorse and assistance given to Mr Jenkins and his wife after the incident. I also note Mr Murphy's service to the Flour Milling Industry through offices held by him in industry organisations and his support for local businesses.
50 The corporate defendant was convicted in 1999 under s 15 and s 16 of the 1983 Act and fined $1,000 in each case. On 16 August 2007, the corporate defendant was fined $27,000 and $40,800 in respect of two separate breaches and Mr Murphy was fined $1,700 and $2,380 in respect of two separate breaches. The breaches for which the defendants were sentenced on 16 August 2007 had occurred on 17 November 2004 and involved a stack of pallets loaded with bags of stockfeed falling with a bag striking an employee of the corporate defendant causing serious injury.
51 The maximum penalties therefore in this case, given that the corporate defendant and the personal defendant have prior convictions is $825,000 and $82,500 respectively. The objective factors in respect of these offences, as outlined earlier in these reasons, requires a significant penalty.
52 I consider an appropriate penalty for the corporate defendant, taking into account all the circumstances set out in these reasons is $220,000.00
53 I consider an appropriate penalty for the personal defendant, taking into account all the circumstances set out in these reasons is $16,500.00
54 The prosecutor sought costs and a moiety of the fine, which I propose to order.
ORDERS
55 The Court makes the following orders:
In Matter No IRC 968 of 2008:
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 $220,000.00 with a moiety to the prosecutor.
4. The corporate defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.
In Matter No IRC 969 of 2008:
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 $16,500.00 with a moiety to the prosecutor.
4. The personal defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.