13 The evidence demonstrated why it was that a guilty plea was entered in this case. The machine in question; its manner of guarding and operation made clear that Mr Munton failed to meet the obligation imposed upon him by s15 of the Act, in the circumstances which occurred in May 2001, which led to Mr Hayward's most regrettable death.
14 The starting point for a determination of the appropriate penalty consistently with the provisions of the Crimes (Sentencing Procedure) Act 1999, is the nature and quality of the offence in question. The evidence showed that the offence was undoubtedly a serious one. It was submitted for Mr Munton by Mr Warren of counsel, that the accident was not foreseeable. While it is relevant that the risk to safety was not foreseen, I am unable to conclude, on the evidence, that it was not foreseeable.
15 The evidence showed that the machine which Mr Munton purchased new, was delivered with the safety guard wedged into a position which was plainly unsafe. Its position permitted operation of the lever controlling the hydraulic hammer, while a person was stationed in close proximity to the hammer as it fell, by the simple means of reaching around the fixed guard. The instruction given by Mr Munton, that Mr Hayward should not place his hands on the hammer lever, was not sufficient to ensure that Mr Hayward did not reach for a control, in such a way, so that presumably mistakenly, the hammer lever was engaged, with fatal consequences when the hammer then fell onto his head. That lever was the first of several levers within reach. The fatal consequences of engaging that lever, when stationed as Mr Hayward was, were entirely foreseeable, given the pressure under which the hammer was operating. The obvious risks that are apparent from the inadequate guarding of the machine in fact materialized. This is a matter which also goes to demonstrate the serious nature of the risks in question; they have resulted in a death. (See Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32].)
16 It must also be concluded that the risks which resulted from the way in which the guard was wedged, could easily have been precluded, by the modifications which were subsequently made by Mr Munton after the accident. There was no suggestion that there was any difficulty or impediment in those modifications being made.
17 It follows that the objective nature and quality of this offence must be assessed as being serious. I accept that it is relevant that the machine was supplied as Mr Munton operated it, when he purchased it new. As supplied, it was inherently unsafe. Mr Munton was not aware that the wedged guard could or should be moved, when the machine was operated. That does not absolve him of responsibility for the offence with which he has been charged, as his guilty plea accepts. Nevertheless, I accept that this is a factor relevant to be taken into account in determining penalty in this case.
18 I am satisfied that the evidence made out all of the particulars of the charge alleged, while noting the prosecutor's submission that the particulars relating to the guarding of the machine, lay at the heart of this prosecution.
19 It was agreed by the prosecutor that various subjective matters must also be taken into account in determining penalty. This, too, is consistent with the provisions of the Crimes (Sentencing Procedure) Act. Those matters included that this was a first offence; that the guilty plea had been entered at the earliest opportunity and that there had been thorough co-operation with the prosecutor from the outset, as well as evidence led going to Mr Munton's good character. I also accept Mr Munton's evidence as to his remorse and contrition for what occurred.
20 I have taken account of all of these factors in assessing penalty, although noting that they must be secondary considerations, to the objective nature and seriousness of the offence.
21 It was accepted that deterrence must also play a part in the sentence imposed. As to specific deterrence, it was submitted that attention would be paid to the evidence that Mr Munton had not engaged in fencing work for a time after the accident, but was forced to resume that work because of his financial circumstances. More recently, he has undertaken different work as a job agent for an organic fertiliser supplier and hoped to have completely ceased fencing work, within six months or less. At the time of the hearing, Mr Munton was doing approximately one day per week of that work.
22 I am satisfied that general deterrence has a role to play in the determination of penalty in this case. I also take the view that specific deterrence has a role to play, although I accept a lesser role than would have been the case, had Mr Munton intended to continue pursuing his fencing business and had he not taken positive steps to ensure that he could cease undertaking that work, in the near future.
23 The prosecutor accepted that account would properly be taken of Mr Munton's financial circumstances, so that an oppressively high penalty would not be imposed. Nevertheless, it was submitted that this did not mean that a heavy penalty was not appropriate.
24 The evidence showed that assets owned by Mr Munton and his wife were valued at over $400,000, and that they had loans of over $180,000 and Mr Munton's income in the past three years, ranged from $6,461.00 to $14,581.00. Section 6 of the Fines Act 1996 requires the Court to have proper regard to this evidence in determining penalty. (McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [22] to [27].)
25 Mr Munton's evidence was that any penalty imposed would result in some financial hardship and would necessitate him selling assets, or taking on further loans. I have considered this in the context of the nature and seriousness of this offence. I have concluded that an appropriate penalty, which is reduced so as not to be oppressive in the circumstances, having regard to the defendant's assets, liabilities and relatively small income, is $20,000.
26 I am also satisfied that the circumstances are such that the penalty must be discounted by 25% to reflect the utilitarian saving flowing from Mr Munton's early plea and co-operation and a further 10% for subjective factors (see R v Thomson; R v Houlton (2001) 49 NSWLR 383). This results in a final penalty of $13,000
Orders