23 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this, must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors.
24 As I observed in the August judgment, on the evidence there can be no doubt that these two offences were committed and that the charges were made out, to the necessary standard. The design of the machine did not preclude the possibility that a person could come in contact with the falling hammer. The information provided was not written in a way which could easily be understood by users. The instruction manual, written with the safety of operators in mind, contained confusing information and did not ensure the safety of others, who might come within proximity of the falling hammer.
25 Mr Phillips argued, and I accept, that on the evidence, it was not possible to come to a conclusion as to precisely how Mr Hayward had been killed. The experts who gave evidence disagreed as to the likely cause - operator error in relation to the lowering of the three point linkage, or problems in the design of the machine, which permitted the operator to inadvertently operate the wrong control while in proximity of the hammer. As observed by Justice Kirby in Camillieri's Stock Feeds Pty Ltd, where a relevant fact is the subject of conflicting evidence, and where that evidence is of like probability, the Court should resolve the conflict in favour of the offender. (See also R v O'Neill [1979] 2 NSWLR 582 at [588].)
26 In a case such as this, however, it is not necessary to come to any conclusions as to how the accident which befell Mr Hayward occurred. These proceedings are concerned with the risk to safety the subject of the charges, which flowed from the design of the machine and the information provided, as the charges alleged. The experts agreed in their evidence that the design of the machine could have led to the accident. More importantly however, the evidence showed that the design of the machine did not protect others apart from an operator, from risk of injury by the hammer. This flowed from the way in which the falling hammer was guarded. Nor did the information provided draw any attention to this possibility. The consequences of that risk were undoubtedly of the most serious kind - death.
27 In those circumstances, it must be concluded that the risks to safety here in question, were most serious. On the evidence, the risks were obviously foreseeable. The level of the defendant's culpability for those risks, must also be considered, however, in the context that it had previously marketed a machine, which completely guarded the hammer, so that a person could have no contact with the falling hammer. The manual had been written with that guard in mind. The evidence was that the defendant had moved away from that design, because it discovered that its customers found that the guarding made the machine more difficult to use; its competitors marketed machines without guarding and its customers removed the guarding from its machines, when operating them in the field.
28 In those circumstances, the decision was made to provide a guard which would still protect operators, but would improve the efficiency of the operation of the machine, so that customers would not be tempted to remove the guarding. Overall, this was thought to improve safe operation of the machine in a practical sense, when operated in the field.
29 As I observed in the August judgment, while there must be sympathy for the adoption of such an approach, in all the circumstances confronting the defendant the changed guard, designed as it was to improve safety in practice, was not one which ensured safety in the way in which the legislation requires of manufacturers such as the defendant. Nevertheless, I also accept that these matters are relevant to an assessment of the defendant's culpability for the offences found proven. Plainly, that would have been higher, had the machine been sold entirely unguarded, as apparently other hammers available for purchase in the marketplace are, and as some operators of such machines modify them to be, after purchasing them with a guard.
30 The defendant accepted that general and specific deterrence have a role to play in here determining penalty, although arguing that specific deterrence has a smaller role in this case, given the defendant's general approach to its obligations and in response to the accident.
31 I am satisfied that both elements must feature in the penalty here imposed. General deterrence is plainly important, given the evidence of the unsatisfactory approach adopted by other manufacturers of such equipment and specific deterrence, given that the defendant moved from a wholly guarded design, to one which could not ensure safety in the necessary way and in doing so, did not provide adequate instructions in relation to the machine supplied. I accept, however, that the evidence as to the defendant's general approach to its safety obligations and the steps taken in response to the risks which the accident revealed, should have the result that specific deterrence has a lesser role to play in determining sentence, than would have been the case in the absence of such steps.
32 I cannot, however, conclude that specific deterrence could properly be excluded entirely in this case, particularly given the inadequate nature of the information provided with the machine. As to this offence, I am not satisfied that the fact that Mr Munton failed to read the safety manual can have any impact upon the seriousness of this offence. Nor, in my view, is it open to conclude on the evidence that the breach was but a technical one, as submitted. Had Mr Munton read the instruction manual, he would have found it a confusing document, containing errors as the defendant acknowledged and which it has taken steps to rectify. Those steps showed that proper adherence to this obligation was a relatively simple matter in the circumstances.
33 I do accept, nevertheless, that the evidence established that this was the less serious of the two offences. I also accept the defendant's submission that there was a warning on the machine alerting operators to safety risks in its operation. The observation in [24] in the August judgment was directed to the absence of information in relation to the risk to safety for persons other than the operator, dealt with in [25]. The evidence showed, for example, that after the accident, prominent signs were placed on the front of the machine warning that it was a 'crush zone'. The defendant complained that it had not understood that the absence of adequate instruction on the machine itself, was a part of the charge made against it. The matter was the subject of evidence and competing submissions at the trial. The evidence led as to these matters was plainly relevant to the information charge, given the particulars expressed as they were in broad terms. The information provided was in various forms, including that provided by the sign placed on the machine, which could, for instance, have overcome deficiencies in the instruction manual. The steps later taken to improve that information by the addition of the warning in relation to the crush zone, is not only relevant to the charge, but by way of mitigation, when the risks to safety were highlighted by Mr Hayward's death. I have so approached that evidence.
34 Both parties accepted that the parity principle must here be applied, which I also accept. I am unable to conclude, as invited by the defendant, that the employer of Mr Hayward, Mr Munton, was the most culpable for the risks here in question. True it was that he was the employer of Mr Hayward, with his own obligations for safety imposed by the Act. Nevertheless, the machine in question was inherently unsafe and the information provided inadequate - obviously so, as was accepted for the defendant. It is true that the employees Mr Munton had working the machine were inexperienced. That, of course, is always a possibility where such a machine is sold in the marketplace by a manufacturer such as the defendant. In any event, the charge is concerned with the risks to safety in question, namely that relating to the machine itself and the information supplied with it, not what in fact happened to Mr Hayward.
35 Otherwise, so far as parity is concerned, account must be taken of the differing charges laid against the other defendants and the circumstances in which they came to be dealt with by the Court. Mr Munton pleaded guilty and the charge against Kentan proceeded ex-parte. The judgments dealing with these defendants indicate the differing facts and other matters which accordingly arose for consideration in their cases, which do not arise here. I have taken account of these various matters in determining penalty.
36 I also accept, as the prosecutor invited and the defendant accepted, that the principle of totality must be applied here. There is some element of overlap in the charges, although not complete overlap by any means, which must be taken into account.
37 As the prosecutor accepted, there are also some relevant subjective matters here to be taken into account in assessing penalty, although the charges were defended, rather than a plea being entered. These include the fact that these are the first offences with which the defendant has been charged, after a very long history of manufacture of farming machinery. The evidence of the defendant's general approach to safety, no doubt, helps explain this situation and must also be taken into account, as earlier noted. It also suggests that this is not a defendant with a propensity to re-offend, as does the response adopted to the accident and the August judgment. Some evidence was led as to the defendant's means, although it was not submitted that the defendant would have any difficulty paying a penalty.
38 Having taken all of these matters into account, I have concluded that the appropriate penalty to be imposed is in relation to the charge in IRC 5078 of 2004 is $130,000 and in IRC 5079 of 2004 is $50,000, a total penalty of $180,000. I have concluded that the penalties should be reduced to: Matter Number IRC 5078 of 2004 - $90,000 and Matter Number IRC 5079 of 2004 - $40,000; a total penalty of $130,000.
39 Finally, before making orders, I take the opportunity to observe that the evidence in this case was troubling in one particular respect. The defendant's unchallenged evidence was that other manufacturers do not adopt the same approach to safety as this defendant. They manufacture and sell hammers which do not have even the guarding available on this machine, inadequate as it was on the evidence, at the time of the accident. This puts the defendant at a competitive disadvantage. There is no basis upon which that evidence could be doubted. This evidence suggests, that other manufacturers are committing offences more serious than that here before the Court. That the WorkCover Authority has not taken steps to deal with such continuing and serious risks to safety, since Mr Hayward's death in May 2001, is worrying and warrants the Authority's further urgent attention. Given the devastating consequences which can flow from operation of such unguarded equipment, as the evidence here so graphically highlighted, a failure to deal with such offences suggests that people's lives are unnecessarily being put at risk, by operation of such unguarded machinery. Prosecution for such offences, after all, lies in WorkCover's hands.
Orders
For all of the reasons given, I make the following orders:
(1) The defendant is found guilty of the offences charged and is to pay the following penalties, with a moiety to the prosecutor.
(i) Matter Number IRC 5078 of 2004 - $90,000