Inspector Ross Wolf v Rockdale Beef Pty Limited

Industrial Relations Commission (NSW)|2007-11-29|Before: Backman J, Mr J, Mr P

CITATION: Inspector Ross Wolf v Rockdale Beef Pty Limited [2008] NSWIRComm 110

PROSECUTOR: Inspector Ross Wolf PARTIES: DEFENDANT: Rockdale Beef Pty Limited

CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - s 10(2) OHS Act 2000 - plea of guilty - accident involving worker's right arm caught in unguarded parts of moving conveyor in boning room at abattoir managed by defendant - risk to safety - safe system of work - obligation on defendant to be pro-active in the workplace with regard to the detection of risks to safety - availability of measures to eliminate the risk prior to the offence - likely consequences of breach of the OHS Act 2000 - general deterrence - specific deterrence - whether defendant pleaded guilty at earliest or first reasonable opportunity - other subjective factors considered - victim impact statement - costs - orders

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1990 Criminal Procedure Act 1986 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Inspector Jelley v Allbright & Wilson (Australia) Ltd (2007) 164 IR 456 Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78 Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 CASES CITED: Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366 WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80

PROSECUTOR: Mr J V Agius of senior counsel with Mr P Skinner of counsel WorkCover Authority of New South Wales (Adrian O'Dea) LEGAL REPRESENTATIVES: DEFENDANT: Mr G J Hatcher of senior counsel with Ms M Painter of counsel Terrett Lawyers (Mr P A Terrett)

Prosecution under section 10(2) of the Occupational Health and Safety Act 2000

[2008] NSWIRComm 110 1 Rockdale Beef Pty Limited has pleaded guilty to an offence under s 10(2) of the Occupational Health and Safety Act 2000 (OHS Act 2000). The charge, set out in an amended application for order, alleges that on 27 October 2001, at an abattoir in Regulator Road, Yanco, the defendant failed to ensure that plant used by people at work, and over which it had limited control in the course of a trade, business or other undertaking of the defendant, was safe and without risks to health when properly used. The amended application for order also sets out particulars of the charge which are extracted below: (a) The defendant failed to ensure that a drag chain conveyer used by Christopher Poole at work was adequately guarded. (b) The defendant's undertaking was the management of the interests of Renod Holdings Limited and M C Meats (Rockdale) Pty Limited, the partners in Rockdale Beef Partnership, pursuant to a certain Management Agreement dated 1 November 1989. (c) The limited extent of the control of the relevant plant was the responsibility of the defendant as manager on behalf of Rockdale Beef Partnership to maintain, repair and, when necessary, replace the plant in the Boning Room of the Rockdale Abattoir, including the said drag chain conveyer. As a result of the defendant's failures Christopher Poole was placed at risk of injury while at work. 2 At the time of the offence Mr Poole worked in the abattoir located at Regulator Road, Yanco, which, according to various agreements tendered by the prosecutor during the sentence proceedings, provided grain-fed beef for both export and domestic markets. The owners and operators of the abattoir were two companies in partnership, namely Renod Holdings Pty Limited and M C Meats (Rockdale) Pty Limited (the partnership). By agreement dated 1 November 1989, (the management agreement) the partnership appointed the defendant (then known as Rockdale Feedlot Management Pty Limited) as the manager of the abattoir at Yanco as well as manager of other operations of the partnership (referred to collectively in the agreement as, "the Project"). 3 The management agreement set out certain duties and responsibilities of the defendant. Clauses 2.5 and 2.6 authorised the defendant to enter into contracts for and on behalf of the partnership. Schedule Two, attached to the agreement, identified the defendant's duties in relation to the project. They included some of the following activities:

(b) the custody, maintenance, operation and protection of the Partnership Property and any other property and assets of any Partner in the Manager's possession; (c) the acquiring of necessary materials, supplies, machinery, equipment and services in connection with the performance of this Agreement; . . . (r) the complying with all laws applicable to the construction and operation of the Project including particularly laws relating to the environment, workmen's compensation and safety requirements; (s) the taking of such action in an emergency affecting the safety of life or the conduct of operations of the Project or the preservation of Partnership Property without first having obtained special instructions or authorisations from the Management Committee as the Manager may deem necessary; 4 A second agreement dated 31 July, 2001 (the NAIQ agreement) was expressed to be made between the defendant, "in its capacity as Manager for and on behalf of Rockdale Beef Partnership ("Company")," and NAIQ Pty Ltd and four individual persons, all directors of NAIQ. Under the agreement (clause 5.1) the company granted a non-exclusive licence to NAIQ, "to use and occupy the Boning Room during the Operating Periods for all purposes reasonably associated with the performance of (NAIQ's) obligations under the agreement". Under clause 3.4(d) of the NAIQ agreement, the company was responsible for maintaining, repairing and when necessary, replacing all plant and equipment used in the boning room. According to the agreed statement of facts the effect of this clause was that the defendant, as manager of the partnership, undertook the nominated responsibilities under the clause. In addition, the operation of the boning room at the abattoir was said to be "controlled" by NAIQ on and from 2 August 2001. 5 In the boning room there were a number of machines and conveyors used to process beef product. One machine, known as a cryovac machine, vacuum-sealed the beef parcels. The beef parcels were delivered to the cryovac machine via conveyors and other machines, including a machine called a danaflex bagging machine (bagging machine). All plant in the boning room was electrically interlocked with the cryovac machine. When it stopped, for example, other conveyors and machines, operating as part of the same sequence, also stopped. The individual conveyors and machines operating in the same sequence as the cryovac machine could also be separately stopped (by use of a button) by the machine operators. When this occurred the machine or conveyor, which had been switched off could not start when the cryovac machine started. 6 The bagging machine consisted of a number of component parts listed in the agreed statement of facts as follows: (a) An endless roller chain conveyor. The links on the chain were 100mm long and 40mm wide, with the rollers 30mm diameter. The conveyor was 7.6 meters long and the bottom return side of the conveyor was approximately 850mm above the concrete floor. (b) Attached to the chain links at equal intervals were 14 stainless steel cradles. Each cradle was approximately 600mm long and 230mm wide, with a dish type platform formed from 7x20mm diameter rods. The rear of the cradle was 35mm stainless steel RHS. Each cradle was attached to the chain link at the rear forming a pivot point. The beef product is transported along the conveyor in this cradle from the flat belt conveyor at the tail to the transfer point at the head pulley sprocket. The conveyor has a stop/start type action. When (sic) cradle is at the head and the beef packet falls off, the conveyor stops, as another beef parcel is at the operator's station ready for the plastic bag to be placed around the meat. (c) There was a wire limit stop switch located at the transfer point to stop the conveyor if a parcel of meat fell from the conveyor at that point. (d) After the limit stop switch had been tripped somebody has to start the system and it would not re-start automatically. (e) At two (2) points on the middle rod of the cradle is a barb type hook. This barb was involved in the Poole accident. The purpose of the barbs is to hold the meat onto the cradle while it is moved along the conveyor. (f) Located at floor level and at waist height level on the opposite side of the conveyor to the operator's station were lanyard type emergency stop switches. (g) Located directly above the operator's station were four (4) stainless steel rectangular units labelled DANAFLEX MULTI BAGGER. These units dispensed plastic bags in which the meat packet was wrapped. (h) On the DANAFLEX MULTI BAGGER there was also a stop button. 7 The bagging machine and the endless roller chain conveyor had been operational from at least September 2000. The bagging machine was used to wrap the beef parcels in plastic bags as the beef travelled along the cradle attached to the conveyor. Situated at the head of the conveyor was a sloping flat belt type conveyor approximately 800mm long. A beef parcel was dropped from a cradle onto this flat belt conveyor from the other conveyor. There was a gap of some 100mm between the front of the cradle as it passed the rear of the sloping flat belt conveyor and a gap of some 40mm as the tail end of the cradle passed the flat belt conveyor. Located directly below the tail end of the flat belt conveyor and just above floor level was a black steel rack (the transfer point). 8 The workers in the boning room, which included Mr Poole, were sourced from Riverina Agency Contracting Services Pty Limited (RACS). RACS was paid on a weekly basis by NAIQ. On 27 October 2001, Mr Poole was directed to operate the bagging machine by Neil Watson, one of four directors of NAIQ and a co-signatory to the NAIQ agreement. It was the first time Mr Poole had operated the machine. He was shown how to do so by the usual machine operator, Kelavati Tora. According to Mr Watson he did not instruct Mr Tora to show Mr Poole how to operate the bagging machine but knew that he had done so. 9 At about 8:10 am Mr Poole bent down under the head of the conveyor, which had stopped, to retrieve a parcel of meat which had fallen onto the black steel rack (transfer point). Suddenly the conveyor started and Mr Poole's right arm was dragged into a shear hazard at the head of the conveyor. He received very serious injuries described in the agreed statement of facts as, "lacerations and injuries to his right arm that involved the partial de-gloving of the skin on part of the inner and part of the outer aspects of the right forearm from elbow to wrist, crush injuries to his forearm, lacerations to his fingers, hand and arm and muscular injuries." 10 At the time of the accident the conveyor had insufficient guarding to prevent persons gaining access to the shear hazard at the head of the conveyor. Under clause 3.3.1 of Australian Standard 1755-2000 Conveyors - Safety Requirements, incorporated by the Code of Practice for Technical Guidance (an industry code of practice approved under s 43 of the OHS Act 2000), shear points and nip points in locations less than 2.5m above an access floor, platform level, stored goods and material, had to be guarded. Under the clause, "shear and nip points are created where the gap between any moving part of the conveyor and any fixed equipment is greater than 4mm and less that (sic) 120mm." The gap between the cradle and the sloping flat belt conveyor at the time of Mr Poole's accident was between 40mm and 100mm. 11 The risk to safety posed by the unguarded parts of the machine arose when Mr Poole attempted to retrieve the beef parcel which had fallen into the gap between the cradle and the flat belt conveyer, and onto the black steel rack. The system in place in the boning room at the time of the offence was that when a beef parcel fell in the gap in the production line, the limit stop switch was tripped and the operation was halted. The next step in the system required an operator of one of the machines, for example the bagging machine operated by Mr Poole, to press the stop button on that machine before attempting to retrieve the parcel. Had Mr Poole followed the procedure the conveyor could not have moved while he was retrieving the parcel and there would have been no risk to his safety. 12 The prosecutor in written submissions on the reasonable foreseeability of the risk to safety contended that the risk was reasonably foreseeable in circumstances where a beef parcel fell into the gap and where; "an uninstructed, incautious, inattentive or negligent employee would reach in to retrieve it whilst the machine was stopped, through operation of the trip wire or from some intervention elsewhere on the production line but not from the operator consciously stopping the machine, and that the machine would then start up without warning, again possibly through intervention elsewhere on the production line." 13 According to the agreed statement of facts, Mr Poole was shown how to operate the machine by Mr Tora. According to Mr Watson Mr Poole told him shortly after the accident that he should have pushed the stop button before he picked up the meat. 14 It is not entirely clear from this evidence whether Mr Poole was aware that the machine could start while he was in the process of retrieving the beef parcel. It may be concluded from the evidence however that the defendant had in place at the time of the offence a safe system for the operation of the plant in the boning room, and, that on the day of the offence there was a departure from that safe system on the part of Mr Poole who, despite being instructed on the use of the machine, did not press the stop button before attempting to retrieve the beef parcel. 15 The existence of this safe system of work in place prior to the offence serves to mitigate the objective seriousness of the offence. 16 The prosecutor submitted in oral submissions that a defendant has an obligation to be pro-active in seeking out risks to safety and taking appropriate measures to obviate those risks. In discharging that obligation, the prosecutor submitted, the present defendant should have acknowledged that sometimes workers do not press stop buttons, but choose instead to take advantage of somebody else having pressed a stop button thereby placing themselves in a precarious position (as Mr Poole did while attempting to retrieve the beef parcel). 17 While the requirement has undoubted relevance in occupational health and safety prosecutions, its application here does not in my view derogate from the finding that the defendant had a safe system of work for its operations in the boning room prior to the offence. The system demonstrated that the defendant had to some extent been pro-active in identifying and taking measures to minimise or eliminate risks to safety. In WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 Hill J made the well-known observation (at 85): This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates. 18 Similarly, in the present circumstances it was possible to achieve greater effectiveness in the implementation of safe work practices, namely the installation of a guard in the area around the transfer point. This was in fact achieved after the date of the accident by installing a steel and perspex electrically interlocking fencing guard around the transfer point which served to halt the operation of the conveyor belt when the gate is opened. There is nothing to suggest on the evidence that this measure could not have been taken at any time prior to the offence, or that it was a particularly costly, complex or otherwise difficult process. The defendant had, however, taken some preliminary steps aimed at addressing the risk to safety posed by the unguarded nip and entrapment points prior to the offence. This was following an inspection of the abattoir by an Inspector from WorkCover in May 2001 and the subsequent issuing of Improvement Notices by another WorkCover Inspector to "Rockdale Beef" to carry out a risk assessment of, "nip and entrapment points that will require guarding." Rockdale Beef, in compliance with the Notices, had commenced an assessment of occupational health and safety issues at the abattoir. A report was in fact prepared by an independent body but apparently was not completed at the time of the offence. According to the prosecutor the effect of this evidence was that the defendant was at least on notice that there was a need to assess these risks. Taking all this material into account I find that the availability of a relatively simple remedy, being the guard around the transfer point, does impact on the objective seriousness of the offence to the detriment of the defendant, although this must be tempered somewhat by the fact that the defendant was in the process of taking steps to address the risks posed by machinery with unguarded nip and entrapment points, prior to the offence. 19 On the issue of reasonable foreseeability the defendant conceded that the risk to safety posed by the unguarded shear and nip points at the head of the conveyor was reasonably foreseeable. Given the absence of a guard which allowed access to the shear and nip points created by the gap between the moving parts of the conveyor and, the fact that beef parcels sometimes fell into the gap requiring retrieval, there can be little doubt that the risk to safety was both obvious and reasonably foreseeable. These matters combine to exacerbate the objective seriousness of the offence. 20 The likely or probable consequences of the defendant's breach of the OHS Act 2000 is another factor which the Court is required to take into account in its assessment of the objective seriousness of the offence. Mr Poole suffered serious injuries as a result of the defendant's failure to ensure that the conveyor was adequately guarded. As the prosecutor conceded, however, it was unlikely that the risk to Mr Poole's safety would, in the circumstances, have resulted in a fatal accident. It follows from this that the defendant's breach of the OHS Act 2000 falls for assessment as objectively less serious than perhaps other breaches which may warrant a different approach, on the basis that the failure to ensure the safety of persons at work, or in the workplace, had every prospect of, or was likely to have, more serious consequences: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [94] [95]. 21 The application of the principle of general deterrence must be accorded significant weight in the circumstances of this offence. Those circumstances reveal another example of a breach of the occupational health and safety legislation involving a risk to safety arising from unguarded machinery. I endorse in these sentencing reasons the remarks of the Full Bench in Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78 concerning the application of the principle to offences of the type presently under consideration, involving unguarded machinery. The endorsement is qualified only to the extent of my earlier finding that the defendant had taken some preliminary steps to address the risks to safety at the abattoir arising as a result of unguarded shear and nip points following the issuing of the improvement notices in May 2001. The relevant passage from Inspector Lai v Rexma is extracted below: [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 ... 22 Specific deterrence must also be taken into account. The defendant continues to operate at the Rockdale abattoir in a management capacity. This was conceded by the defendant in oral submissions. Its duties and responsibilities at the abattoir have been adverted to earlier in these sentencing reasons. They are set out in the management and NAIQ agreements. Under Schedule Two of the management agreement, for example, one of the defendant's duties as manager is to comply with all laws applicable to the operation of the project including laws relating to the environment, workers compensation and safety requirements. These matters suggest that the defendant plays a significant and ongoing role at the abattoir in relation to matters of safety. In oral submissions, the defendant sought to construct a proposition that the defendant had, and continues to have, limited control at the abattoir. According to the defendant it employs no-one and owns nothing. It is, "purely a management company ... there to administer the interests of the Rockdale Beef partnership", with a limited right to enter the boning room in accordance with the NAIQ agreement under clause 5. 23 It is unnecessary for the Court in these sentencing reasons to embark on an analysis of the NAIQ agreement in order to determine the defendant's level of participation in that agreement, by virtue of its capacity as manager of the partnership. The evidence is sufficient to make the finding that it played and continues to play a significant and ongoing role at the abattoir. The fact that it may or may not have "limited control" of operations at the abattoir in its capacity as manager does nothing to detract from this finding. 24 The defendant, in any event, by its plea, has acknowledged that it had control as required under s 10(2) at the abattoir at the time of the offence. Further, the principle of specific deterrence is not confined to employers but extends to a wider class of offenders which includes owners of premises, self-employed persons, and persons who have been found to have the requisite control of plant or premises where breaches of occupational health and safety legislation have occurred: see Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 at [26]; WorkCover Authority (NSW) (Inspector Jones) v Challita (2006) 153 IR 409 at [32] to [35]. 25 The defendant pleaded guilty to the offence. Senior Counsel for the prosecutor, Mr Agius, conceded that the defendant is entitled to some reduction of the penalty by reason of the utilitarian value of the plea. According to the prosecutor, a discount of penalty on this basis is warranted because the plea was entered just prior to the date the matter was set down for a three-week defended hearing. The prosecutor did not concede that the plea of guilty was entered at an early stage. This was said to be because the substance of the amended charge, to which the plea of guilty was entered, was the same as it was before the trial judge, her Honour Justice Schmidt. Later in submissions the prosecutor contended that the amendments made to the original charge were "otiose", and the gravamen of the offence alleged in the original charge did not change when the charge was amended. By contrast, the defendant contended that it had entered its plea of guilty to the amended charge at the earliest opportunity and was therefore entitled to the "maximum discount". 26 Senior Counsel for the defendant, Mr Hatcher, provided the Court with a brief history of the matter. According to Mr Hatcher, the defendant was originally charged under s 8(2) of the OHS Act 2000 and, in the alternative, s 10(2) of that Act. The defendant had objected on technical grounds to the form of the s 10(2) charge before Justice Schmidt, and her Honour after hearing the parties had dismissed the charge. The charge under s 8(2) remained. The technical grounds to which objection was taken under s 10(2) were, according to Mr Hatcher, the failure of the prosecutor to plead essential legal elements of the charge, namely those elements set out in s 10(3) (in particular the defendant's undertaking under s 10(3)(d)) and s 10(4)(a) (limited control of the subject plant). On appeal by the prosecutor, Mr Hatcher said the Full Bench held that the matters arising under s 10(3)(d) and s 10(4)(a) were not essential legal elements but were essential particulars, necessary to the charge. In proceedings taken in the Court of Appeal by the defendant, Mr Hatcher said Spigelman CJ held that the particular sub-sections in issue were essential legal elements. Basten JA held (Mason P agreeing), they were not, and further, that the charge could be amended. Mr Hatcher added, "but it is not clear whether (Basten JA) sees it as necessary for the charge to be amended to proceed". In summing up the Court history, Mr Hatcher said: Now there's still a substantial debate there to be had as to whether the charge as pleaded was valid. That is, even if it's a charge that's curable, if the prosector chooses not to cure it we were entitled to say Well if you don't want to cure it you've got the opportunity, we're going to argue that it's not an appropriate charge to proceed. All that is avoided because we've said: If you plead these elements we will plead guilty. That's why we say it's the first time we're faced with this charge and we've pleaded at the very first opportunity when we're faced with this charge. They're elements we've said have always been necessary to be pleaded. 27 It may be convenient at this point to set out s 10 of the Act:

10 Duties of controllers of work premises, plant or substances

(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.

(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.

(3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and

(b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and

(d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.

(4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and

(b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 28 At first instance the defendant filed a notice of motion seeking the dismissal of the original charge on several grounds, one of which was that the offence alleged under s 10(2) did not specify the legal nature of the offence, nor the particular act, matter or thing alleged as the foundation of the charge: Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 at [23]. The defendant's case was that the provisions of s 10(3) and s 10(4) formed part of the elements of a charge under s 10(2) which must be pleaded by the prosecutor. The prosecutor's failure to do this within the two year limitation period for the filing of the charge rendered the offence, incurable. Her Honour, Justice Schmidt found that the legal elements of the offence included, "those elements which flow from the provisions of ss 10(3) and (4)" (at [50]). Accordingly her Honour dismissed the offence under s 10(2) but ordered that the s 8(2) offence proceed to hearing (at [67]). 29 On appeal by the prosecutor to the Full Bench, the appeal was upheld, the Full Bench finding that the provisions of s 10(3) and s 10(4) did not constitute elements of an offence under s 10(2): WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366 at [173]. In its consideration of the issue, the Full Bench set out the elements of an offence under s 10(2) which the prosecutor is required to prove beyond reasonable doubt. They are (at [160]): (1) A person has control of any plant or substance;

(2) The plant or substance is used by persons at work;

(3) There has been a failure by the person in control of the plant or substance to ensure that the plant or substance was safe and without risks to health; and,

(4) The failure in (3) occurs in circumstances where the plant or substance is not properly used. 30 In relation to the provisions of s 10(3), the Full Bench held that s 10(3)(a) and s 10(3)(b) impose specific exceptions to the general duty of a controller under s 10(1) and s 10(2) and therefore did not constitute essential legal elements of an offence under s 10(2): at [162] [163] [173]. In relation to the provisions of s 10(3)(c) and s 10(3)(d), the Full Bench held that s 10(3)(c) constituted an essential factual ingredient (referring to the place of the offence) and s 10(3)(d), an essential factual particular of an offence under s 10(2), both of which the prosecutor had an obligation to specify in any charge: at [162] [163] [173]. 31 The Full Bench characterised the provisions of s 10(4) as qualifications countenanced by s 417A of the Crimes Act 1990. (Under s 417A a qualification (as well as an exception) need not be specified in a charge, and where it is specified in a charge, the prosector is not required to prove it). The provisions of s 10(4) therefore did not constitute essential legal elements of an offence under s 10(2): at [168] [169] [173]. 32 The defendant brought proceedings in the Court of Appeal against the decision of the Full Bench seeking declarations, inter alia, as to whether the charge under s 10(2) was a charge known to the law: Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7. Basten JA (with whom Mason P agreed) found that the offence under s 10(2) as originally charged was valid (at [53] [103] [125]). In relation to s 10(4) his Honour found: [103] Whether the extent of the control needed to be specified or not, no complaint could be made in relation to the validity of the charge. The charge asserted that the claimant failed to ensure that "plant … over which it had control" was safe and without risks to health. That constituted an unambiguous assertion (whether or not correct as a matter of fact) that the claimant had control over the relevant drag chain conveyor which was identified in the particulars as the item of plant. Accordingly, this complaint must fail.

33 Basten JA considered that the complaint made in relation to s 10(3)(d) (that the prosecutor had failed to plead an essential element of the charge under s 10(2)) had more substance. After examining a number of statutory provisions and relevant authorities, his Honour concluded that the Full Bench was correct to find error on the part of the trial judge, that error being the finding that the failure to plead that the subject conduct took place in circumstances where the plant was controlled in, "the course of a trade, business or other undertaking", was a failure to allege an essential legal element of the charge. His Honour continued (at [125]): Because the charge stated that the plant was "used by people at work" and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a "drag chain conveyor" also gave rise to the inference that it was machinery of a kind used in the course of trade, business or other undertaking. 34 His Honour added (at [126]): "Whether any further particulars were required may be doubted in these circumstances, but the case was one in which, had there been a difficulty, amendment of the pleading would have been available" 35 His Honour also considered the relevance of a number of provisions under the Criminal Procedure Act 1986 (CPA), dealing with objections to alleged defects in substance or form, variance, and, amendments to a charge (s 16(2), s 17, s 21), concluding: [131] The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs , Campbell JA noted that the deficiencies in a court attendance notice could be "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. [Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2). [133] Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2). 36 From the brief summary of these judgments on the issue, it may be concluded that the offence under s 10(2) as originally charged (which alleged a failure to ensure that plant over which the defendant had control was safe etc when properly used) was valid in that it pleaded the legal elements of the offence. Although the Full Bench found (at [164]) that s 10(3)(d) should be specified in the charge by the prosecutor, being an essential factual particular, Basten JA (Mason P agreeing) appears to have taken a contrary view. His Honour found that there was "little substance" in the complaint that the charge failed to allege control in the course of a trade, business or other undertaking. Three bases were advanced for this. First, the original charge pleaded that the plant, "was used by people at work"; secondly, it could be inferred that the subject plant (the drag chain conveyor) was machinery of a kind used in the course of a trade, business or other undertaking; and thirdly, if in the interests of procedural fairness, it was thought necessary to expressly refer to the relevant business in the charge, the defendant was entitled to rely on the prosector's accompanying affidavit. His Honour doubted, "whether any further particulars were required", and said that the case was one in which, "had there been a difficulty, amendment of the pleading would have been available"; and, "the allegation that a person had control of plant used by people at work . . . is not advanced by saying that the plant was controlled in the course of the business." 37 The effect of these findings in my view does not assist the defendant's assertion, in these proceedings, "that it was not clear whether (Basten JA) sees it as necessary for the charge to be amended to proceed." His Honour's findings do not support the assertion. Rather, his Honour seems to be suggesting that it was open to make an application that the charge be amended at any stage of the proceedings. His Honour expressed some doubt as to whether further particulars were required, in view of the material which was available to the defendant. 38 Returning to the present proceedings, whether a plea of guilty has been entered at the earliest opportunity (which may, or may not, confer an entitlement to the "maximum" discount for the utilitarian value of the plea of guilty) was considered in Inspector Stephen Cooper v Rail Infrastructure Corporation at [33] to [54]. I adopt the reasons and findings made in that judgment in these sentencing reasons. 39 It is an uncontroversial and well-known proposition that where a plea of guilty has been entered at the earliest, or first reasonable opportunity, it does not confer an entitlement to a discount of 25 per cent (sometimes referred to (inaccurately) as the "maximum discount") for the utilitarian value of the plea: Inspector Stephen Cooper v Rail Infrastructure Corporation at [50]. The present circumstances, however, reveal that the defendant's plea to the amended charge was not entered at the earliest opportunity. The amendments made to the original charge, in my view, merely provided some further particularisation of the defendant's alleged control of the subject plant on the day of the offence. As Basten JA found, there was "little substance" in the complaint that the original charge had failed to allege control of the plant in the course of a trade, business or undertaking. The defendant, as I understand the material in these proceedings, at no stage requested any further particulars in relation to the offence. Basten JA doubted whether any further particulars, given the information available to the defendant, were required, but added, "the case was one in which had there been a difficulty, amendment of the pleading would have been available". Before leaving this issue I should mention that during oral submissions, the defendant handed to the Court a table of cases decided in this jurisdiction during 2006, 2007, which the defendant said, "reveal similar sorts of injuries to those in this case." At the same time the defendant acknowledged that, "the Full Court deprecates the use of comparative judgments". The Court was not taken to any of the cases set out in the table, but in any event, as many judgments in this jurisdiction have sought to emphasise, little assistance can be gained from the mere provision to the Court of a table of, "comparative cases". This is because each case must necessarily be determined by reference to its own particular facts and circumstances: Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 at [24] to [27]; Inspector Jelley v Allbright & Wilson (Australia) Ltd (2007) 164 IR 456 at [29]. 40 Given all these circumstances I assess an appropriate discount of penalty for the utilitarian value of the plea at 10 per cent. 41 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty, although the extent to which leniency will be afforded must be qualified by what may be described as a strong prosecution case: see on this issue Inspector Lai v Rexma at [29]. 42 The defendant has also expressed its sincere regret that the "misadventure" occurred in premises that it operates as a manager, and assured the Court that, "every conceivable step has been taken to avoid such an eventuality". This last-mentioned matter I take to be a reference to the safety measures implemented very soon after Mr Poole's accident. The day after the accident the defendant installed fixed guards on the machines in the boning room as an interim safety measure. Two weeks later the steel and perspex electrically interlocking fencing guard was installed around the transfer point. It should also be acknowledged before leaving this point that, according to the statement of facts the prosecutor, after inspecting the abattoir on 12 May, 2003, described the abattoir as "excellent", and its operations as, "first class". The prosecutor conceded that the abattoir was safely run, commenting that, "someone turned their mind to . . . ensuring it worked safely". The installation of the guard, a measure which has effectively eliminated the risk to the safety of workers in Mr Poole's circumstances at the time of the accident, and other measures taken after the accident, are matters which will be taken into account in the defendant's favour on penalty. 43 The defendant has no prior convictions. The maximum penalty which the defendant faces, therefore, is $550,000. The absence of prior convictions entitles the defendant to leniency normally extended to an offender who is otherwise not adversely recorded. 44 During the sentence proceedings a victim impact statement made by Mr Poole was tendered by the prosecutor, over objection, under Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 (CSPA). In the statement Mr Poole explained that he underwent six months of physiotherapy and was on medication for nerve damage, following the accident. He said the medication made him drowsy so he stopped taking it and tried to get back to work. Despite his attempts, which were hampered by the lack of work involving light work duties, he did not obtain work until 18 months later, on a farm. He made his employer aware of his injuries, but while performing his duties his right arm tightened up. Visits to the doctors did not help. In addition, he was taking a lot of pain killers for his wrist, lower arm and shoulder. His condition, in relation to his right arm ,continues to deteriorate. 45 While the Court expresses every sympathy for Mr Poole's plight and acknowledges the impact the accident has had on his quality of life, I have formed the view that the contents of the statement do not affect the penalty to be imposed, which is otherwise appropriate in all the circumstances of the case: see discussion on the relevance of victim impact statements in sentence proceedings in Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 at [65] to [69]. 46 The parties informed the Court during oral submissions that they had agreed, in relation to the issue of costs of these proceedings, that each party pay its own costs, with a moiety of the fine to the prosecutor. I propose to make orders in terms which acknowledge that agreement.

47 In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the maximum penalty, the factors in mitigation, and the absence of prior convictions. All matters have been considered by reference to the CSPA, in particular s 21A.

48 In Matter No IRC 6128 of 2003 I make the following orders: (1) The defendant is convicted of the offence; (2) The defendant is fined $100,000 with a moiety to the prosecutor; (3) Each party is to pay its own costs of these sentence proceedings; ____________

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