Inspector Rosmund Schuman v BCP Employees Pty Ltd

Judgment 1These prosecutions are brought by Inspector Rosmund Schuman of the WorkCover Authority of New South Wales against BCP Employees Pty Ltd ("the first defendant" or "BCP Employees") under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and Beresford Concrete Products Pty Limited ("the second defendant" or "BCP Precast") under s 10(2) of the Act, by way of amended Applications for Order. 2It is alleged the first defendant, being an employer, on 30 January 2008, at the corner of Chelmsford Road and the Pacific Highway, Charmhaven, in the State of New South Wales ("the premises), contravened s 8(2) of the Act in that it failed to: Ensure that persons not in its employment and in particular, Scott Mant and Aaron Flint, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. In particular: a) The defendant, as a consequence of failing to take the measures particularised below, exposed persons not in its employment and in particular, Scott Bradley Mant and Mr Aaron Flint, to a risk that they would be injured by coming into contact with an unguarded nip point on a slat conveyor when the conveyor was moving. b) The defendant failed to take the following measures to ensure that the plant was adequately guarded, namely a Rotovibromatic Colle Dry Cast Machine including its associated conveyors ("the plant), so as to prevent contact by persons with the moving parts of the plant: i. Guard a nip point on a slat conveyor ("the transverse slat conveyor") between the slats and a roller; ii. Have in place a physical barrier preventing workers accessing the slat conveyor when it was moving; and iii. Ensure a light curtain designed to stop the machinery if a person crossed through a light beam adjacent to the conveyors was on and operating, such that if persons stepped on to the conveyors that action would stop the transverse slat conveyor from moving. c) The defendant failed to take the following measures to ensure that there was a system of work in place for the use of the Rotovibromatic Colle Dry Cast Machine that was safe and without risks to health: i. Not allow workers to stand on the conveyors while the machinery was operating. d) The defendant failed to take the following measure to provide adequate information, instruction and training to persons working on or with the Rotovibromatic Colle Dry Cast Machine: i. Instruct employees not to access the conveyors while the plant was operating. e) The defendant failed to conduct an adequate risk assessment in relation to the Rotovibromatic Colle Dry Cast Machine, in particular: i. The defendant failed to identify the risks of injury that arose from: a worker accessing the conveyors when the dry cast machine was operating; and a worker being on the conveyors when the plant was restarted; and ii. The defendant failed to identify the risks of injury arising from the lack of adequate guarding of the plant. As a result of the defendant's failures, Scott Bradley Mant and Aaron Flint, who were not employees of the defendant, who were working at the premises on 20 January 2008, were placed at risk of injury. 3It is alleged the second defendant, in the course of its trade, business or other undertaking on 30 January 2008 at the corner of Chelmsford Road and the Pacific Highway, Charmhaven, in the State of New South Wales ("the premises), contravened s 10(2) of the Act in that it failed to: ensure that the plant was safe and without risks to health contrary to section 10(2) of the Occupational Health and Safety Act 2000. In particular: a) At all material times the defendant had control or alternatively, limited control over a Rotovibromatic Dry Cast Machine including its associated conveyors ("the plant") at the premises; b) At all material times, persons not employed by the defendant, in particular Scott Mant, Aaron Flint and Liam Anderson performed work on or with the plant; c) The defendant, as a consequence of failing to take the measures particularised below, exposed persons not in its employment and in particular, Scott Bradely Mant and Aaron Flint, to a risk that they would be injured by coming into contact with an unguarded nip point on the plant when the conveyor was moving. d) The defendant failed to take the following measures to ensure that the plant was adequately guarded so as to prevent contact by persons with the moving parts of the plant: i. Guard a nip point on a slat conveyor ("the transverse slat conveyor") between the slats and a roller; ii. Have in place a physical barrier preventing workers accessing the transverse slat conveyor when it was moving; and iii. Ensure a light curtain designed to stop the machinery if a person crossed through a light beam adjacent to the conveyors was on and operating, such that if persons stepped on to the conveyors that action would stop the transverse slat conveyor from moving. e) The defendant failed to ensure that the plant was safe and without risks to health in that it failed to have a system of work that did not allow persons to stand on the conveyors while the machinery was operating; f) The defendant failed to ensure that the plant was safe and without risks to health in that it failed to provide adequate information, instruction and training to persons working on or with the plant, in particular; i. The defendant failed to instruct employees not to access the conveyors while the plant was operating. g) The defendant failed to ensure that the plant was safe and without risks to health in that it failed to conduct an adequate risk assessment in relation to the use of the plant, in particular; i. The defendant failed to identify the risks of injury that arose from: a worker accessing the conveyors when the dry cast machine was operating; and a worker being on the conveyors when the plant was restarted; ii. The defendant failed to identify the risks of injury arising from the lack of adequate guarding of the plant. As a result of the defendant's failures, there was a risk of injury to non-employees working on or with the plant including Mr Scott Mant and Mr Aaron Flint. The injuries sustained by Scott Mant were a manifestation of that risk. 4Each defendant pleads guilty to the charges. 5Mr J P Phillips SC with Ms W G Thompson of counsel appeared for the prosecution and Mr M K Scott, of counsel, appeared for the defendants. The prosecution relied upon an Agreed Statement of Facts with annexures which included: six photographs dated 30 January 2008 and 15 February 2008; Factual Inspection Report of Sandra Shaw dated 1 February 2008; three Factual Inspection Reports of Inspector Rosmund Schuman dated 1 April 2008, 24 April 2008 and 24 April 2008; Technical Report of James Neill Lawson on BCP Precast Charmhaven dated 4 March 2008; Prohibition Notice No. 149983 issued to Beresford Concrete dated 27 February 2008; Colle Instruction Manual; Risk Assessment conducted by Mr Roberts dated 18 July 2006; BCP Precast risk assessment of the dry cast machine on 11 February 2008; Impact Machinery and Equipment Checklist and Prior Convictions Certificates. 6The defendants relied upon an affidavit of Mr Wrixon Frank Gasteen sworn 15 March 2011 . A number of relevant documents were attached to the affidavit including documents in relation to the pre-existing safe work method, the investigation of the incident, and the upgrading of the system of work both immediately after the incident and finally with the removal of the moving conveyancer. 7It was agreed that evidence in one prosecution be evidence in the other except as to the relevance of that evidence to the differing particulars relied upon in the amended Applications for Order. 8There was one Agreed Statement of Facts for both prosecutions which relevantly reads: Background 3. At all material times, Beresford Concrete Products Pty Ltd, trading as BCP Precast ("BCP Precast") manufactured pre-cast concrete products such as road barriers, storm water pits, manhole components, wing walls and box culverts primarily for the civil drainage industry. BCP Precast was incorporated on 21 July 1982. 4. At all material times, BCP Precast conducted its business at premises it leased located at the corner of Chelmsford Road and Pacific Highway, Charmhaven, in the State of New South Wales ("the premises"). BCP Precast also conducted operations at other locations. 5. BCP Employees Pty Ltd ("BCP Employees") was incorporated on 20 April 2007. 6. In about June 2007, there was a restructuring of the business. BCP Group Holdings Pty Ltd [ACN 125 032 984] was established as an investment/holding company. BCP Precast and BCP Employees became wholly owned subsidiaries of BCP Group Holdings. 7. BCP Precast continued to conduct all trading operations, including operating the factory and producing goods. BCP Precast continued to own machinery at the premises including the Rotovibromatic Dry Cast Machine described below. 8. From about June 2007, BCP Precast ceased to employ persons and the workers it had previously employed at the premises became employees of BCP Employees. 9. From about June 2007, BCP Employees employed, inter alia, Mr Joseph Roberts ("Mr Roberts") as the Operations Manager. Mr Roberts was responsible for management of the operations at the premises. 10. BCP Precast entered into agreements with labour hire firms, inter alia, Venture Solutions Australia Pty Ltd, trading as Impact Personnel (Aust) ("Impact") and Grey Recruitment Pty Ltd ("Grey Recruitment") to supply workers to work at the premises. 11. Mr Scott Bradley Mant ("Mr Mant") a 32 year old labourer and trades assistant, was employed by Impact and commenced working at BCP Precast premises on 14 September 2007. Mr Mant's duties included welding and maintenance of machinery. 12. Also working at the premises prior to and on 30 January 2008 was: a. Mr Aaron Flint ("Mr Flint"), a labour hire employee, employed by Impact, who was engaged to work at the premises as a machine operator; and b. Mr Liam Michael Anderson ("Mr Anderson"), a labour hire employee, employed by Grey Recruitment, who was engaged to work at the premises as a console operator. The Dry Cast Machine 13. In 2006, BCP Precast entered into a contract with, Colle S.p.a, ("Colle"), an Italian company, to supply a new automated machine to manufacture pre-cast concrete products, known as a Rotovibromatic Dry Cast Machine ("the dry cast machine"). The machine was designed by Colle. BCP Precast commissioned the machine in May 2006. It was used to manufacture concrete pits and risers. 14. The dry cast machine was located on the east wall, in the centre of the factory. It takes up an area of approximately 14 metres long, 20 metres wide and 7 metres high. The machine was situated over a large concrete pit with access stairs approximately 3m from the area. 15. The dry cast machine consists of a number of components and operates on a cycle that takes between 6 - 10 minutes. The machine consists of a hopper bucket with a dual mould section, a mechanical arm and conveyors to move the finished concrete products for inspection. It operates (and operated at the time of the incident) as follows: a. A dry-cast concrete mix is delivered into the machine by feeder pipes and fed into the two moulds. The moulds are vibrated and the concrete mix is compacted. The pressing head lowers, forcing concrete into the mould. b. To the left of the hopper bucket, a mechanical arm picks up steel pallets. The steel pallets measure approximately 2000mm square, and consist of two sheets of steel approximately 5mm thick, supported by upright steel making the pallet approximately 100mm high. c. The mechanical arm places the steel pallet on to a movable conveyor section identified as the 'cart', a platform moving on rails about 3.5m wide by 2.1m long. The cart moves between the base of the hopper bucket of the machine and its default position alongside the slat conveyor. d. After the steel pallet has been placed on the cart and the concrete moulds have been compacted, the moulds are then rotated and the products are released onto the steel pallet on top of the cart. e. The cart then moves back along its rails to its default position alongside a slat conveyor, which operates at a right angle to the cart ("the transverse slat conveyor"). The transverse slat conveyor had steel conveyor slats measuring approximately 100mm wide x 50mm deep by 1800mm long, with approximately 30mm gap between the slats. When operating, the slats move from left to right towards the second section of the slat conveyor. At the right end of the transverse slat conveyor is a steel roller, approximately 100mm in diameter and 1850mm long ("the idler roller"). As the steel slats of the transverse slat conveyor near the idler roller, they turn and angle down before travelling back underneath and there is a gap of approximately 100mm between the last slat and the idler roller. That gap, between the last slat and the idler roller, was at the time of the incident unguarded and created a nip point. f. The product then moves over the idler roller, over a driver roller, and onto the second section of the conveyor ("the second conveyor"). The driver roller measures approximately 130mm in diameter and 1800mm in length. The second conveyor remains in a stationary position during normal operations. g. The steel pallet is then lifted off the second conveyor by a forklift. 16. To the right of the dry cast machine and behind the second conveyor was an area where a maintenance desk was located ("the maintenance area"). 17. The dry cast machine and conveyors were guarded by a 'light curtain', a system of photocell sensors that generate 'beams' around the perimeter of the equipment. The light beam system surrounding the machine and conveyors consisted of towers on each side of the conveyor, approximately 1000mm high. The lights and mirrors of this part of the system were located at the base of the towers. There were proximity sensors either side of both steel rollers, approximately 500mm high. 18. The system was designed such that if someone or something crossed the perimeter of the machinery the light beam would be broken and the machine would stop. 19. At the time of the incident the light beam alongside the left side of the machine and cart was on and working, however, the light beams on each side of the transverse slat and second conveyors were turned off. That meant a person could access the second conveyor (and from there the transverse slat conveyor) without stopping the machine. 20. The dry cast machine was operated by a worker standing at a console ("the console operator"). The operator console had a computer screen and keyboard, buttons and controls, including a cycle stop button and an emergency stop button. 21. The console was located at the left end of the cart conveyor behind a steel mesh fence approximately 3000mm long by 1200mm high. The location of the console and its height meant it largely obscured the console operator's view of the transverse slat conveyor. The operator console was approximately 630mm wide, 320mm long, 700mm high and 1100mm above the floor. 22. There was an emergency stop button situated on top of a light curtain tower, positioned outside the right hand rail, adjacent to the dry cast machine, approximately 5000mm from the cart conveyor. There were cycle stop buttons positioned on either side of the dry cast machine. The Incident 23. On 30 January 2008 Mr Anderson was operating the dry cast machine at the console making pits. Mr Anderson noticed that the pits being made had faults: two indents were appearing on the bottom of the pits. Mr Anderson asked Mr Mant to assist him to investigate the problem. Both Mr Mant and Mr Flint came to assist Mr Anderson. 24. Mr Anderson told Mr Mant and Mr Flint that he would run a cycle on the dry cast machine so that Mr Mant and Mr Flint could observe it operating to work out what the fault was. Mr Anderson went to the console. Mr Mant and Mr Flint were standing in the maintenance area. Mr Anderson commenced a cycle of the dry cast machine. 25. After the cycle had been commenced, but before the transverse slat conveyor had started to move towards the hopper bucket, Mr Mant and Mr Flint stepped from the maintenance area onto the second conveyor using a step made from half a railway sleeper placed there for that purpose and from the second conveyor they stepped onto the transverse slat conveyor in order to take a closer look. 26. Mr Mant and Mr Flint were standing on the transverse slat conveyor looking at the operating dry cast machine when the transverse slat conveyor began to move automatically. Mr Mant's right boot got caught between the moving slats and the idler roller. Mr Mant was dragged down into the moving slats causing his right leg to snap and lose support. At that point his left leg also got dragged into the moving slats. 27. Mr Anderson heard Mr Mant's shouts and immediately hit the cycle stop button. However, that button only stopped the mould rotating and did not stop the conveyor, so Mr Anderson then hit the emergency stop button and the conveyor stopped. Mr Anderson ran to Mr Mant and saw that his legs were caught in the conveyor. Mr Anderson then ran to the office to seek assistance. 28. Immediately following the incident, ambulances attended the premises, and Mr Mant was taken by helicopter to John Hunter Hospital. 29. Mr Mant sustained serious injuries as a result of the incident, including severe crush injuries to both his right leg and left foot. Mr Mant's left foot was amputated. Mr Mant has undergone 13 operations and has a number of screws, pins and plates in his right leg. Mr Mant has a large scar on the top of his right left as a result of skin grafts, and skin grafting to his amputated left foot. Mr Mant now wears a prosthesis on his left leg. At November 2008 Mr Mant had to return to hospital for further treatment for his right leg and had not returned to work. System of Work Prior to the Incident 30. Prior to the incident the light beam around the machine was working, however the light beams monitoring the perimeter around the conveyor were switched off. The light beams around the conveyor had not been on and operational since September 2006. 31. The light curtain sensors could be reset by the console operator, but the light beams could not be turned off and on by the console operator. They could only be turned off and on by Colle, which had the capacity to do so remotely from Italy via the internet. 32. As at the date of the incident workers at the premises, including Mr Roberts, knew that those light beams were not operating. Having those light beams off allowed workers to step on and off the transverse and second conveyors without that action stopping the machine from operating. 33. Prior to the incident it was BCP Precast's usual system of work to allow workers to access the transverse slat roller when it was moving. Working or standing on the conveyor when it was moving was a routine process and an accepted practice. 34. Prior to the incident BCP Precast had not prepared safe working procedures for working around the conveyors and on the dry cast machine. 35. Prior to the incident Mr Roberts conducted a risk assessment and prepared a handwritten document, dated 18 July 2006. It did not identify a risk of workers being inside the light curtain and on the transverse slat conveyor when the machinery was operating or upon it being restarted. It did not identify the risk arising from the existence of an unguarded nip point. 36. In response to the risk assessment, Mr Roberts was sent an email on 20 July 2006 from Mr David Lenihan, another Operations Manager working for BCP Precast that identified that the risk assessment was inadequate in that it did not deal with the risks that arose from workers accessing the conveyor while it was operating. However, a further risk assessment was not conducted, nor were steps taken to identify and address those risks. 37. Prior the incident BCP Precast had not ensured that adequate training was provided to workers on how to safely operate the dry cast machine. Mr Mant had been provided with a 30-minute site induction when he commenced employment at the premises, but he had not been provided with any specific or formal training or instruction in respect of the dry cast machine. In addition, at no time prior to the incident were employees instructed not to access the conveyors while the plant was in operation nor were employees informed of the associated risks. System of Work Following the Incident 38. By email on the date of the incident BCP Precast requested Colle turn on the light sensors that had been switched off. The light beam was active by the next day. 39. BCP Precast conducted a full risk assessment of the dry cast machine on 11 February 2008. 40. After the incident BCP Precast installed perimeter fencing, which was approximately 4 metres in height, around the dry cast machine, creating a physical barrier around the plant. BCP Precast installed interlocked safety switches on the gates of the fence so that when the gates were opened, the machinery automatically stopped operating. Other gates in the fencing accessing the conveyors were key padlocked. 41. BCP Precast installed a guard over the nip point at the end of the transverse slat conveyor next to the idler roller. 42. BCP Precast installed danger and warning signs around the dry cast machine, and changed the forklift access in the area. 43. The practice of standing on the conveyor whilst the machine was operating was stopped. Standard operating procedures for using the dry cast machine were prepared which did not allow access to the conveyor while the machine was operating, and operators were trained in accordance with those safe operating procedures.

Relevant Principles 9In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(2) and s 10(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 10Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 11Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 (2000), correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 12In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...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." 13Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

Consideration 14In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): 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" ... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 15In considering the objective seriousness of each offence in context, it is necessary to state the relationship between the two corporate defendants, each of which faces a separate charge brought under different provisions of the Occupational Health and Safety Act 2000. 16The corporate structure and governance of this manufacturer of pre-cast concrete products was revealed in an affidavit of Wrixon Frank Gasteen, the Consultant Chief Executive Officer of the BCP Group since July 2008. Mr Gasteen is the Chairman of the BCP Group Holdings company from September 2007. He is also a Director of "BCP Employees" since May 2008 and a Director of "BCP Precast" since June 2008. 17BCP Precast has been operating since 1982. In mid 2007 a private equity firm, NBC Capital Pty Ltd, purchased the major shareholding (75 percent) in BCP Precast. A corporate restructure followed whereby two additional entities were created: BCP Employees and BCP Group Holding Pty Ltd. The BCP Group has under its control three corporations but one of those corporations is not active. The first defendant, BCP Employees, has a contract to provide all labour services to BCP Precast. It, therefore, is the employer of all managers and provides for the group management services, resources and all the policies and procedures (for example, occupation, health and safety) for BCP Precast. Given the purpose of forming BCP Employees, it is ironic that these labour hire employees, affected by the breach of the Act, were hired by BCP Precast. 18BCP Precast owns all the plant on the relevant site and is the trading company for the group. The operations carried out by BCP Precast include the manufacture of pre-cast concrete products for the civil drainage industry. It operates two factories in New South Wales and one in Queensland. The factory where the incident occurred is located at the corner of the Pacific Highway and Chelmsford Road, Charmhaven, NSW. BCP Precast utilises approximately 150 employees, of which about half are permanent employees of BCP Employees, the first defendant. 19At the time of the incident there were 31 permanent employees, three casual employees and 24 labour hire employees at the Charmhaven factory. However, it was labour hire employees who were involved in this incident. 20Both defendants plead guilty to a charge, similarly, if not exactly, pleaded. The difference between the charges is essentially that each charge directs itself to the obligation carried by each corporation under the Act. BCP Employees, the first defendant, failed to ensure persons not in its employ were exposed to a risk from a dangerous machine, where a guard (a light curtain) was knowingly deactivated thereby exposing those persons to a known risk, namely: the risk where there was an unguarded nip point on a slat conveyer when the conveyer was moving (s 8(2)). The light protectors, which, if crossed, would have stopped the conveyor from moving, were disconnected. BCP Precast, the second defendant, owned the plant, a dry cast machine serviced by the slat conveyor, and it failed to ensure those same persons, working on its site, were not exposed to the same risk provided by its unguarded machine (s 10(2)). 21Both defendants failed to provide adequate information, instruction and training to the relevant two casual/temporary persons who had only been working on the defendants' worksite, in this dangerous job in heavy industry, for some few months. Both persons performing the task were exposed to the risk of coming into contact with the unguarded nip point on the conveyor in a circumstance where they were required to step into the conveyor (which had problems), which conveyor, as part of the dry cast machine cycle, began to move. The labour hire firm, the employer, faces no prosecution before this Court. 22The defendants, helpfully in submissions, explained the safety system in place. The conveyor had an inbuilt safety system as part of the design of the dry cast machine. It ensured the conveyor ceased operation on contact as follows: 12. The manner of guarding the machine to ensure safety that was provided by Colle SpA was by means of a system of photocell sensors that generated 'light beams' around the perimeter of the machine including the transverse conveyor. ... The system was designed so that if a person or object crossed the area where the 'light beam' was directed the machine would stop automatically. ... The light beams could not be turned off and on by the console operator, only reset. The only means by which the light beams could be turned off or on was by Colle SpA who could only do so remotely from Italy. ... 13. At the time of the incident the designed 'light beam' was operational for the left side of the machine and cart. The light beams on each side of the transverse conveyor and second conveyors had been turned off so that when Mr Flint and Mr Mant accessed the transverse conveyor the machine did not stop. ... A work practice was permitted whereby workers would access the transverse conveyor and second conveyors without having the machine stopped. ... Subsequent investigation established that the light beams for on each side of the transverse conveyor and second conveyors had not been operational since September 2006. ... 14. The position of the console in relation to the transverse conveyor meant that the operator Mr Anderson while standing at the console did not have a clear view of the transverse conveyor. ... 15. Emergency buttons were fitted on the console and on top of the light curtain tower adjacent to the dry cast machine about 50 meters from the cart conveyor in addition to cycle stop buttons located on either side of the dry cast machine. ... The operator of the console (another labour hire employee) therefore could not see Mr Mant was on the conveyor when it went into the movement cycle. 23These men on site, Scott Mant and Aaron Flint, were required to investigate a production malfunction in the working of the dry cast machine and, at the time, the conveyor appeared to be inactive. However, while it was not moving, Mr Mant and Mr Flint climbed onto the conveyor at a point in the cycle of the operation of the dry cast machine when the conveyor began moving into operation mode. Mr Mant was standing on the conveyor investigating the whereabouts of the production problem. His feet were caught by the roller of the moving conveyor. He lost his left foot into the conveyor and his right foot suffered laceration and crush injuries. Mr Flint was able to get clear. 24The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]: 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. 25The Court is satisfied that, prior to the incident, BCP Precast had in place an occupational health and safety system, that was documented, which provided systems of work and training for its employees. Some changes had been implemented on the dry cast machine for safety reasons prior to the incident, for example: barriers were required to prevent access to the dry cast machine on 8 October 2006; signs and additional lighting were added on 10 August 2006 and 31 July 2006 respectively; the base plate was covered to remove risks of injury during cleaning on 26 September 2006; cables were shortened and secured on 13 September 2006; a cover was fitted to the console panel on 13 September 2006; and operators were to wear hearing protection while operating the machine. 26A further audit on the machine was conducted at the direction of the Board of the BCP Group, by its then OHS officer, in December 2007. That risk assessment was partly acted upon at the time of the incident, but the new management of the Group also challenged the audit as inadequate. Management was of the view the risk assessment did not properly identify the risk which could arise given persons accessed the conveyors of the dry cast machine while the machine was operating. The risk, therefore, had been identified by the management prior to this incident. However, while the risk was identified, no further steps were taken to address the known practices of persons standing on the conveyor until after the incident. These facts (honestly revealed by the defendants) strengthen the foreseeability of the offences. I, therefore, accept there is a foreseeable element to each offence which makes each offence more serious. 27The availability of simple and straightforward steps to remedy the defects in the system in place is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps which should have been adhered to by both management and the owner of the plant in this precast concrete production task. Those steps would have eliminated the risk. Safety failures, such as the reconnection of the light beams to stop the conveyor and fencing the conveyor from access, were simple and straightforward steps and not expensive. Such activity after the incident is indicative of the fact a safe system of work was readily available and practical. 28The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendants ( Lawrenson Diecasting (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any person at work being required to step onto a conveyor when it had a pre-programmed movement cycle. The words of Hill J, in Tyler v Sydney Electricity (1993) 47 IR 1 at (5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant ... Mr Mant lost his left foot and has had 13 operations on his right leg. In this matter the potential risk became a reality with all its consequences. The gravity of this foreseeable risk to safety was most serious. 29The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... 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 Ltd (No 2) [2000] NSWIRComm 39 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. Both defendants continue to operate in the manufacturing of precast concrete products. There shall be an element of specific deterrence in the penalty with an acknowledgment there was, before the incident, an awareness of the necessity for safe working procedures which awareness is now rigorously implemented. 30The nature of the risk to which Mr Mant and Mr Flint were exposed is one that had been problematic in occupational health and safety terms since the inception of the industrial revolution and has been acknowledged by the legislature of New South Wales since the proclamation of the Factories and Shops Act in 1896. By 1912, that Act gave limited safety protection to employees and, a later legislative reform through the Factories, Shops and Industries Act 1962, made clear the employer's obligation to guard the machinery it used in its production. The risk was of a person coming into contact with an operating piece of machinery where the dangerous part of the machinery is not guarded. Apposite is the view expressed by the Full Bench in WorkCover Authority of NSW ( Inspector Lai ) v Rexma Pty Ltd [2008] NSWIRComm 78; (2008) 172 IR 210: [49] The need for the application of the principle of deterrence in the sentencing process cannot be underestimated here. The offences reveal yet another serious incident involving unguarded machinery where the risk to safety, although obvious, was ignored. We adopt the observations of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2002) 112 IR 1 concerning the importance of the principle when considering the objective seriousness of offences involving unguarded machinery: [41] . . . It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (NSW) (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at par 53. [42] The dangers presented by an unguarded saw are well known and management at all levels should be vigilant to ensure that unguarded machinery is not used . . . 31To require employees to perform work in close proximity to machinery that contains moving plant requires an emphasis by the employer on safe work systems. Where machinery is installed with appropriate guarding mechanisms, it is incumbent upon persons in the position of the defendants to ensure that such guarding mechanisms remain effective. Any change made to the designed safety features on plant requires a further risk assessment of the machine in operation. The new system adopted must have within it an acknowledgement of the existing risk and identify alternative safety features to ensure safe working. No such thought was given by either defendant when they determined the light beam guard be disconnected. A rigorous approach is needed by all employers conducting dangerous, but industrially necessary, operations and an element of both specific and general deterrence is necessary in the consideration of penalty in both charges, given both defendants continue to operate in this heavy industry. 32It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendants. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168: [56] ... it 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) Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 33In Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Court of New South Wales) said at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides " remorse " may be taken into account as a mitigating fact if, and 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) (emphasis added) . . . 34The Court accepts there was a pre-existing awareness of the necessity for safe working processes on site, but a known risk provided to persons when the conveyor was moving was not addressed. I accept immediately after the incident the light beams were made operational; wire mesh fences were erected around the conveyor; cameras were installed; and, work practice of standing on conveyers ceased. Importantly, the transverse conveyor was removed from the machine in 2009 and the precast product is now removed by forklift. The task was again risk assessed. 35A number of additional safety policies and procedures have also been implemented at the factory, including the following: The systems used for hazard identification and control have bee refined and all staff are encouraged to report any hazard they may identify; Near misses are reported and investigated; Regular meetings of the OHS Committee are held; Tool box meetings are held weekly and minuted. The meetings are conducted by the Operations Manager, production Engineer or WHS Coordinator. All workers are to attend. Safety Operating Procedures have been reviewed. A drug and alcohol screening program has been implemented. Training programs have been extended to include external OHS training resources and staff are sent to external courses. Pedestrian walkways and traffic management have been improved. A new statistical reporting system has been developed that shows a significant reduction in lost time injury rates for the period 2008/2009 to 2011. The company's approach to providing resources required for OHS matters is to conduct safety audits regularly and allocate capital to implement the recommendations flowing from the audits. The corporations have demonstrated their commitment to safe working standards through their reviews and the redesign of all their systems for each task. 36I accept the corporations have demonstrated their contrition and remorse for their act in exposing these two persons to a risk to their safety, in that they have met the obligation to offer suitable employment to Mr Mant, have donated monies to assist Mr Mant's partner with travel expenses, have monitored the medical progress of Mr Mant and stayed in regular contact with him. Boland J in Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 stated at [76]: The authorities establish that remorse and contrition can be demonstrated, particularly in the case of a corporation, by a variety, or combination, of factors. This can include, although not be limited to: the defendant entering a guilty plea ( WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 at [29]); the assistance provided to the victim or the victim's family ( WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 at [35]); and an express statement of remorse or contrition by someone duly authorised to make such a statement on behalf of a defendant, although any statement must be assessed in light of the defendant's conduct ( WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 at [39]). Both defendants have demonstrated their contrition, not only by the actions taken after the incident in relation to Mr Mant, but their contrition is also demonstrated in the actions taken to make this workplace safer. There has been a proper expression of that remorse by Mr Gasteen on behalf of both corporations. 37Both defendants entered early pleas to the offences as charged and will each be given a 25 percent discount for the utilitarian value of a plea ( R v Thomson; R v Houlton ). It is agreed both defendants co-operated with the investigation of the incident. 38The principle of parity in sentencing must be given consideration given these two prosecutions arise from the same incident. In Postiglione v The Queen (1997) 189 CLR 295, Dawson and Gaudron JJ stated the principle in the following terms (at 301 - 303): The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. ... 39As well as the appreciation of the principle of parity, the defendants submit, given the inter-relationship between the operations of the two defendants, that, while the principle of totality may not strictly apply, both defendants operate as the one operation within BCP Group Holdings and, except for the corporate structure, the second defendant could have been solely liable for the offence. Reliance is placed in support of this proposition on the consideration in WorkCover Authority of NSW (Inspector Green) v Metropolitan Administrative Services Pty Ltd & Ors [2005] NSWIRComm 12 where Marks J stated at [30]: It is a trite observation that the duty of the court is to impose such penalty which is appropriate in all the circumstances so as to reflect the intention of the legislature. There can be no doubt that if the shareholders, who are identical in both companies, had resolved to utilise the one corporate entity to operate the business of both defendants there would only be one prosecution before the Court, alleging a breach of s 15(1) of the Act and that there would be no prosecution brought under s 16. Whilst I acknowledge that the different approaches, which are to be found in the authorities to which I have referred, are available and can both be justified, it seems to me on balance that it is preferable to adopt an approach which ameliorates the aggregation of penalties which would otherwise have been imposed on two corporate entities which are closely related by way of identical shareholders and which share common overall management, especially where only one incident gives rise to the proceedings and there is a large degree of overlap in the factual circumstances which have created the breaches. ... 40In Inspector Sara Bestre v Jontari Pty Ltd; Inspector Sara Bestre v Tempo Services Pty Ltd; Inspector Jessica Doyle v Gignen Pty Ltd; Inspector Jessica Doyle v Tempo Services Pty Ltd [2007] NSWIRComm 190, Haylen J considered pleas where a corporation and two subsidiary companies (labour hire firms) pleaded guilty to breaches of the Act arising from the same incident. He found on the facts that because the labour hire companies exercised no control and played no part in the day to day employment of employment relationships and as a matter of fact the defendant corporation "stood in the shoes of the employer" that notwithstanding the subsidiaries could have exercised control, the seriousness of the offence of the labour hire companies could be ameliorated. 41In WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341, the Full Bench determined it was not permissible under the principle of totality to treat two related corporations as a single entity for the purpose of penalty. 42The evidence shows there is an identical majority shareholder and an identical management structure for these corporations. However, it is my view, the proper approach to this submission, while acknowledging there are a number of common features to each offence, is not to take any guidance from the totality principle (which, it is conceded, is not applicable), but rather, to consider the contribution to the risk by each defendant and to consider any distinguishing features put to the Court by each defendant in mitigation of penalty. 43As to the contribution to the risk, BCP Precast brought these casual/temporary persons to perform work on its unsafe plant. BCP Employees had managerial control of the manufacturing process those persons were performing. Both defendants knew of the deactivation of the light beams and the unsafe practice of requiring persons to climb onto the conveyor. Both defendants entered an early plea and have both been party to expressions of contrition and remorse. The real distinguishing feature is that the second defendant, BCP Precast, has two prior convictions and therefore faces a significant increase in the maximum penalty. The maximum penalty for the first defendant is $550,000 and the maximum penalty for the second defendant is $820,000. 44I find the contribution to the risk was equal between the parties as both knew of the removal of the light controls and both knew of the practice of persons climbing onto the conveyor. I accept the major emphasis in determining penalty must be on the objective seriousness of the offence. Each offence sits in the higher range of seriousness given both had prior knowledge of the removal of the beams and the practice of persons to climb onto the conveyor. 45However, BCP Precast does not have an unblemished industrial record. 46The fact that the corporations have the same majority shareholders I do not accept is a significant consideration. The directors of the holding company made a decision to form two companies and to put employment and management responsibilities into one corporation and the trading operation, including the ownership of plant, under another. The hiring of employees of a labour hire firm for short term work was also a policy and business decision. The decision to split the responsibilities into two corporate structures was made in the corporate restructure undertaken in 2007. There must have been an awareness by the Directors of the potential consequences of this business management decision. It would be impossible to believe such corporate decisions were made in 2007 without full knowledge by the group leadership, in making the decision to incorporate two companies, that each corporation would from thence carry individual obligations under the Occupational Health and Safety Act for the safe working of this machine at its worksite for both their employees and separately for persons brought onto its worksites. Equal justice between the parties requires they are equally liable in the circumstances. In such a circumstance, each defendant committed an offence under the Occupational Health and Safety Act 2000, within the high range, in their failures to ensure a machine was properly guarded, to properly instruct and train persons working at the site and to properly risk assess the task. 47I find the first defendant, BCP Employees, guilty of the offence as charged. The defendant is fined in the sum of $80,000. 48I find the second defendant, BCP Precast, guilty of the offence as charged. The defendant is fined in the sum of $120,000. 49There will be one order as to costs. Each defendant shall pay half of the costs of the prosecutor. Orders 50The Court makes the following orders:

1. In Matter No IRC 71 of 2010, I find the defendant guilty of the offence as charged.
2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales.
3. In Matter No IRC72 of 2010, I find the defendant guilty of the offence as charged.
4. The defendant is fined in the sum of $120,000 with a moiety to WorkCover Authority of New South Wales.
5. There shall be one order as to costs. Each defendant shall pay half the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2011