Inspector Shepherd v Desiya Pty Ltd

Evidence 5The evidence in one matter is taken to be evidence in the other.

Agreed Statement of facts 6The prosecutor tendered an Agreed Statement of Facts ("ASF") dealing with both prosecutions. In addition to matters already mentioned, the ASF indicated that: (a) the Agrigrain partnership (trading as Agrigrain) undertook the business of cereal grain wholesaling both on a domestic and international scale. (b) At all material times Vinsente and Desiya, as partners of the Agrigrain partnership, was an employer. (c) In addition to Mr Brown the partnership also employed: Stephen Rodney Hartin, as a Yard Manager Stephen James Carney, as a Labourer Peter Ross Holmes, as a Labourer Paul Dixon as a labourer. Luke Anthony Glase, who at the time of the incident was a Yard Supervisor David Leslie Frail, who at the time of the incident was a Yard Supervisor Ian Richard Rindfleish, who at the time of the incident was the Export Manager Peter Douglas Pritchard, who at the time of the incident was the General Manager of the Agrigrain partnership. (d) At the time of the incident, Vinsente and Desiya, (as partners in the Agrigrain partnership) employed approximately 40 staff, ranging from permanent through to casual staff. These comprised management positions, administration staff, truck drivers, labourers and machine operators. (e) Trevor Brown commenced his employment with Agrigrain on 15 November 2008. He was employed as a labourer. Mr Brown mainly worked in the container loading area filling wheat containers. Mr Brown also carried out maintenance work and was required to operate forklifts, front-end loaders and rigid trucks, including the type involved in the incident. Mr Brown had previously worked for Agrigrain at the premises as a general labourer between 29 February 2004 and 15 December 2004, performing similar duties. 7The ASF described the incident that led to Mr Brown's death in the following terms: On Monday 2 March 2009 at approximately 7:30am, Trevor Brown attended work at the Agrigrain premises at Tullamore Road, Narromine NSW. He was allocated duties for that day. His duties immediately before the incident, i.e. between approximately 7:30am and 9:30am, consisted of attending at the maintenance shed on the western side of Agrigrain's premises, in his own vehicle, where he met up with Peter Holmes, the designated driver of the L2 tipper. Mr Brown and Peter Holmes were to remove two blocks that the L2 tipper bin rested on at the rear of the L2 tipper on the chassis, as the bin was "bouncing". The maintenance work on the L2 tipper took approximately two hours. After completing that work, Trevor Brown requested a lift from Peter Holmes in the L2 tipper to another location known as the container filler area (approximately 500 metres from the maintenance shed, on the western side of Agrigrain's premises) so that Mr Brown could pick up a "Hyster" Reach Stacker container forklift truck. Mr Brown was to then take the container forklift back to the maintenance shed to perform maintenance on it. Peter Holmes stated that Mr Brown entered the passenger side door of the L2 tipper truck and that Mr Holmes entered the driver's side door. Mr Holmes stated that he was just about to drop Mr Brown at the place where the 'Hyster' container forklift was parked, when Mr Brown asked to be dropped off at a hut behind the container fillers (approximately 50 metres away from where the Hyster container forklift was parked), apparently to tell Jimmy Carlon, the "container man", that he was taking the "hiab" (apparently a reference to an item of plant). Peter Holmes stopped the L2 tipper truck at Container Filler 2 with the L2 tipper facing in a southerly direction. At the time that the L2 tipper was stopped, the container filler hut was to the right hand side of the L2 tipper truck (i.e. on the driver's side of the L2 tipper), and the Hyster container forklift was approximately 40 to 50 metres away in a direct line with the passenger side door, or on the left hand side of the L2 tipper truck. Peter Holmes stated that when Trevor Brown alighted from the L2 tipper truck, he (Holmes) looked away and did not see which way Trevor Brown went. Peter Holmes stated that prior to moving off he looked in the right and left door mirrors and over the front of the steering wheel to the front of the truck and that Mr Brown "wasn't there". Mr Holmes stated that he thought Mr Brown had entered the hut. Mr Holmes stated that he sat in the L2 tipper for "probably three minutes" with the truck idling because he couldn't see Mr Brown and he thought he would give him enough time to get out of the way and "'cause I looked away". Mr Holmes then pushed the truck into gear (either first or second gear low range is his recollection), put his foot on the clutch, put his foot on the brake and released the park brake, took his foot off the brake, and then moved slowly and smoothly off the mark. Within a couple of seconds he felt like he hit "a little pothole" and then heard someone yelling "Get an ambulance, get an ambulance". Mr Carney, a labourer employed at the premises since April 2002, states that he witnessed the incident as he was reversing a forklift approximately 50 metres away from (and in direct line of sight of) the front of the L2 tipper truck. Mr Carney stated (in his police interview on 16 March 2009) that the time between when he first was looking in the direction of the eventual incident (when there was no truck in his sight) to the time when he saw the L2 tipper and the incident, was only "seconds". Mr Carney stated (in his WCA Record of Interview dated 4 June 2009) that he did not know how long the L2 tipper had been at the incident location before the Incident as there were containers between him and the incident site. Mr Carney stated it was about 3 seconds between him first seeing Mr Brown and the L2 tipper truck start to move. Mr Carney stated that he saw a person (Mr Brown) at the front of the L2 tipper truck, walking upright towards the driver's side, although still reasonably close to the L2 tipper truck. Mr Carney stated that Mr Brown was facing towards him (Mr Carney) at that time, i.e. Mr Brown was facing away from the L2 tipper truck at the time. Mr Carney stated that Mr Brown then turned to his right side (towards the L2 tipper truck), put his right arm up to the front of the L2 tipper, and then the L2 tipper "just pushed into him and over the top of him". Mr Carney stated that the front wheels of the L2 tipper drove over Mr Brown, but that Mr Brown rolled out from underneath the driver's side of the L2 tipper truck before the rear wheels passed over him. The ambulance attended and Mr Brown was treated at the scene of the incident by NSW Ambulance Officers and then taken to Narromine Hospital. He had suffered internal injuries and died shortly thereafter - 12:34pm on 2 March 2009 (i.e. the same day). The autopsy report stated that the cause of death was "extensive loss of blood due to lacerated right lung, liver and right kidney due to bone fractures and massive contusions due to trauma (truck accident)". At his inspection on the day following the incident, Inspector Hutchinson noted, in his Factual Report, that: "whilst seated in the driver's seat I observed that visibility of the area in close to the truck was very poor. It was not possible to see a 190cm person when he stood very close to the truck in the area from the passenger-side door around to almost the centre line of the windscreen. While directly in front of the driver's side it was possible to see the top portion of his head." 8The ASF described the system of work that applied at the premises prior to the incident. This included the induction of new employees, which involved the employees being shown around the yard and being told information such as what their roles were and what equipment they needed. The employees were also told other information such as how grain was moved around, the cleaning of silos, and moving other machinery. In most instances, employees were shown a form known as an 'Employee Induction Checklist' and then shown around the site where some of the various issues listed in the form were pointed out to them. Employees were then asked to sign the Induction Checklist. 9The partnership had various training documentation, but employees interviewed by the WorkCover Authority, with the exception of Ian Rindfleish, could not recall having been provided, during the induction, with all the training documents. 10Trucks and items of plant operated by the business were required to travel along and across Tullamore Road on a regular basis. However, at the time of the incident, "the L2 tipper" was not registered with the Roads and Traffic Authority of NSW (RTA). 11The ASF described the procedure for yard truck driver training that applied prior to the incident as follows: Prior to the date of the incident, there were no documented procedures for the training of yard truck drivers at Agrigrain nor was there a formal training process. The training and assessment of drivers of yard trucks was done via 'on the job training' and assessment. The trainers who conducted this training were generally the Yard Manager and the Yard Supervisors. These persons had experience and were competent in the operation of the respective yard trucks. The training and assessment involved a supervisor giving verbal instructions to the intended driver that comprised of a rundown on how the truck operated and what the controls were for and the safety requirements for driving around the site. Verbal instructions were commonly used by Agrigrain as a control measure against employees with poor literacy skills not understanding the written instructions contained within training documentation. The supervisor then rode in the yard truck with the intended driver and observed their driving skills. The supervisor would thereafter for a period observe the driver operating the vehicle to ensure they were operating it properly and safely. Once the intended driver had demonstrated their ability to operate the yard truck competently and safely they were then permitted to undertake duties using the yard truck. For the period between April 2008 and January 2009, the Yard Manager and Yard Supervisors were not themselves appropriately licensed by the RTA to drive a heavy vehicle. Ian Rindfleish, the Yard Manager, was on 'P' Plates and Luke Glase, a Yard Supervisor, had never held an RTA licence at all. David Frail, the other Yard Supervisor, had a standard 'C class' licence issued by the RTA but this licence did not permit the operating of the type of vehicle involved in the incident. 'C class' licence holders are prohibited from operating a vehicle over 4.5 tonnes Gross Vehicle Mass. The competence of the trainee or trainer was not assessed against any documented objective criteria. After this 'training' process, if the driver was assessed as competent by the supervisor they were then permitted to operate the truck. 12The ASF also described the traffic management system pre-incident to the extent that one existed: No adequate risk assessment was undertaken in relation to the interaction of moving vehicles/plant and pedestrians at the premises. There was no specific training provided to employees in relation to the interaction of moving vehicles/plant and pedestrians at the premises. There was no adequate traffic management system at Agrigrain prior to the incident involving Mr Brown. The traffic management system at the site prior to the incident primarily related to the enforcement of a 10km per hour speed limit around the premises. Prior to the Incident, Agrigrain had a set of rules for the operation of plant and trucks at the site. This included a speed limit sign placed at the entrance to the western side of the site. These traffic management rules were also communicated at an employee's induction. Safety around vehicles was outlined in the Employee Induction Checklist. The traffic management rules were also discussed at OH&S Committee meetings conducted by Agrigrain. On or about 8 December 2008 as a result of an improvement notice issued by WorkCover the Agrigrain partnership contacted Safe Production Solutions Pty Ltd ("SP Solutions") to provide a proposal for the provision of a Risk Based Approach to the Development of Safety and Health Management System. SP Solutions then developed a proposal for Agrigrain's consideration. Agrigrain accepted this proposal on 6 January 2009. SP Solutions commenced the work in respect to the Risk Based Approach to the Development of Safety and Health Management System in January 2009. On 28 January 2009, SP Solutions provided a number of Agrigrain staff with OHS Duty of Care training. On 5 February 2009 SP Solutions conducted Conduct Local Risk Control training for the proposed risk assessment team from Agrigrain. At the time of the incident on 2 March 2009, there were no documented procedures in place to separate moving plant from pedestrians. 13Following the incident, the partnership took steps to develop, implement and maintain a safe system to control the safe movement of persons in the workplace where there were vehicles/mobile plant in operation and provided a documented risk assessment and traffic control plan that included safety rules, traffic routes/flow, signage, separation of pedestrians from vehicular traffic and provision of safe walkways and crossings. 14On or about 31 August 2009, Safe Production Solutions Pty Ltd provided to the Agrigrain Partnership a revised and substantially expanded Agrigrain Employee Induction Program including movement of pedestrians, safety around vehicles, general safety rules and a site map from the traffic control plan. Agrigrain re-inducted all employees using the new Program from around September 2009. 15Following the incident, the Agrigrain Partnership contacted Pentrans Consulting Pty Ltd ("Pentrans") to arrange training of some Agrigrain employees and to assess the competence of drivers of Agrigrain yard trucks. The training to be provided was the Certificate III in Transport & Logistics. The training comprised Unit No TLIC107C Drive Vehicle and five other Units. The training comprised of a classroom component, then practical components inspecting various vehicles and then a drive in a yard truck. 16The trainees were required to complete an Assessment instrument (or provide information for completion of an Assessment instrument by others). The intention of this training was that, at its completion, the trainees would be considered competent to operate an Agrigrain yard truck and, at that time, would be given an Agrigrain Permit, permitting the holder to drive yard trucks at the premises, including across the Tullamore Road. 17The ASF indicated that Vinsente and Desiya co-operated with WorkCover during the investigation. 18In relation to assistance provided to Mr Brown's family, the ASF stated: The Agrigrain partnership provides to Mr Brown's two daughters a payment each month. Agrigrain pays each of Mr Brown's daughters $1,000.00 per month. The money has been paid since the incident involving Mr Brown. As at the date of this statement the Agrigrain partnership has paid $86,000.00 to Mr Brown's daughters. 19The ASF noted that on 5 December 2007, Vinsente was convicted in the Chief Industrial Magistrate's Court under section 8(1) of the Occupational Health and Safety Act and was ordered to pay a fine of $36,000. Desiya has no prior convictions. 20In addition to the ASF the prosecutor tendered: (a) coloured photographs of the incident site and vehicle in question; (b) "Safety Management Proposal - A Risk Based approach to the development of Safety and health management System" provided to Agrigrain by Safe Production Solutions Pty Ltd dated 16 December 2008; "Risk Assessment on Overhead Power Lines" dated 2 march 2009 and Traffic Movement and Management Risk Assessment" dated 5 March 2009; (c) copy of Judgment of the Chief Industrial Magistrate dated 5 December 2007 in relation to Vinsente Pty Ltd; (d) Prior Convictions Report: Vinsente Pty Ltd showing one prior conviction; (e) Prior Convictions Report: Desiya Pty Ltd showing no prior convictions; (f) a factual inspection report by Inspector Hutchinson dated 10 March 2009; (g) copy of a Partnership Agreement between Vinsente Pty Ltd and Desiya Pty Ltd dated 1 July 2007.

Evidence for Vinsente 21The evidence for Vinsente comprised an affidavit of David Ringland, a director of Vinsente together with a large number of annexures. Mr Ringland was not required for cross-examination. Mr Ringland explained that in or about 1983, he became the owner of a share in the partnership that commenced trading as Agrigrain. From 1 July 1989, Vinsente was a corporate partner in the business known as the Agrigrain Partnership. In about 1995 Mr Ringland took over sole ownership of Agrigrain. 22In 2005, Peter Prichard who was the General Manager of the Agrigrain Partnership, was offered an option to purchase a 20 per cent share in the Agrigrain business. On 1 July 2007, Mr Prichard exercised his option to purchase a 20 per cent share in the Agrigrain business. This was done through Mr Pritchard's corporate vehicle, Desiya Pty Ltd. 23On 1 July 2007, Vinsente entered into a Partnership Agreement with Desiya in relation to the Agrigrain business (the Agrigrain Partnership). Pursuant to the Partnership Agreement, Vinsente and Desiya were the owners of the assets of the Agrigrain Partnership in the ratios of 80% and 20% respectively. 24As from 1 July 2007, Mr Ringland relinquished his title and role as Managing Director of Agrigrain. Thereafter, he became a Non-Executive Director of the Agrigrain Partnership. Mr Pritchard from that date became the Executive Director of the Agrigrain Partnership. 25Mr Ringland deposed that Agrigrain is one of the largest employers in the Narromine area. It currently employs in excess of 50 people. At the time of the incident, the Agrigrain Partnership employed approximately 40 staff, ranging from permanent through to casual staff. These comprised management positions, administration staff, maintenance workers, truck drivers, labourers and machine operators. In addition, a number of casual employees are engaged during peak periods such as harvest (November/December) and sowing (May/June/July). Mr Ringland said Agrigrain is also a significant contributor to the economy of Central West NSW, both through its direct employment and also through indirect employment through its use of a range of local service providers to provide a range of services to the Agrigrain business. 26Mr Ringland further deposed the Agrigrain Partnership had and has in place a Management Team which includes a General Manager, Yard Manager, Finance and Administration Manager, Trading Manager, Manager of Seed and Fertiliser, and Container Operations Manager. Agrigrain also has, since the incident, introduced the role of Occupational Health and Safety Manager. At the time of the incident, these managers assisted the then General Manager, Peter Pritchard with the management of the operations of the business including in relation to occupational health and safety. 27Mr Ringland said he was aware that the Agrigrain Partnership had a functioning Occupational Health and Safety (OH&S) Committee. The Committee was established by 2003 and continued to meet regularly throughout the period up to November 2008. 28Mr Ringland described the system of work as at March 2009. This included a documented OHS Policy that included an OHS Consultation Statement and a series of safety procedures for various tasks that employees were required to undertake. Agrigrain also had in place a Procedures Manual. The Manual was divided into a number of core activities of the business and contained detailed procedures for undertaking various tasks within that core activity. 29Mr Ringland deposed that on or around 8 December 2008, the Agrigrain Partnership engaged safety consultants 'Safe Production Solutions Pty Ltd' ("SP Solutions"), to review the existing safety systems and to provide the necessary expertise to develop a risk based approach to Agrigrain's safety and health management system. The proposal, which was accepted and implemented, included the development and implementation of a safety and health management system including:

• a Safety and Health Management Plan;
• hazard identification and risk management activities (including a broad brush risk assessment);
• hazard identification training;
• OHS/Duty of Care training;
• safe work operating procedures (including for machinery and equipment);
• review processes; and
• improved communication between employees and management. 30Mr Ringland said that the proposal also included that the Agrigrain Safety Management System would be delivered and stored in an online environment, using P2B software, which includes a comprehensive risk register, content management system and document management system which allows the Safety Management System to be easily reviewed, updated and printed. 31Mr Ringland explained that, prior to the incident, Agrigrain had a set of rules for the operation of mobile plant and trucks at the site. This included traffic signs and speed limit signs placed at locations around the Site. Traffic rules and traffic management were raised and reinforced via site meetings and toolbox talks. These traffic management rules were also communicated at an employee's induction. Safety around vehicles was outlined in the Employee Induction Checklist. Mr Ringland said the traffic management rules were also discussed at OH&S Committee meetings conducted by Agrigrain. 32Mr Ringland further deposed that on 4 February 2009, a team of Agrigrain personnel conducted a risk assessment facilitated by SP Solutions for traffic movements (vehicular and pedestrian) to identify high levels of risk associated with traffic movement. It was proposed that, arising from this risk assessment of traffic movements (vehicular and pedestrian), SP Solutions and Agrigrain would develop a Traffic Management Plan for the Site. However, such a Traffic Management Plan was not able to be developed prior to the date of the incident involving Mr Brown. On 5 February 2009, two consultants from SP Solutions attended the Agrigrain site and conducted nationally accredited 'Job Safety Analysis and Hazard identification' training on site for Agrigrain employees. 33Mr Ringland acknowledged that, prior to the incident, the training and assessment of drivers of yard trucks was done via 'on the job training' and assessment. The trainers who conducted this training were generally the Yard Manager and the Yard Supervisors. He said these persons had experience and were competent in the operation of the respective yard trucks. 34Mr Ringland described the operation of the OH&S Committee at the site, a documented system for OHS Accident/Incident reports, toolbox meetings, training and instruction of staff, which was "largely practical, observational and 'hands-on' based rather than document or theory based" and the system for the maintenance and servicing of plant. In this last respect, Mr Ringland said plant was required to undergo regular schedule servicing and maintenance, which was performed by maintenance staff or, where necessary, third party service providers. 35Mr Ringland said that in response to the incident, the Agrigrain Partnership took a number of steps to address both the particular risk that arose on the date of the incident and also more broadly in relation to workplace health and safety matters. This included implementation of the "Transport and Traffic Management Plan", which specifically addressed issues relating to the circumstances relevant to the incident involving Mr Brown. In particular, the Plan addressed a number of matters in relation to the interaction of pedestrians and mobile plant, including driver training, pedestrian walkway and 'no go' areas and warning systems for vehicles including:

Evidence for Desiya 43The evidence for Desiya comprised an affidavit of Peter Pritchard, a Director of that defendant, an extract showing the ABN details for Desiya Pty Ltd and a pay advice in respect of Peter Ross Holmes for the pay period ending 1 February 2009. 44In relation to the Agrigrain Partnership, Mr Pritchard deposed as follows: In 2007 Desiya entered into a partnership with Vinsente Pty Ltd. The partnership venture was known as Agrigrain (ABN 37 873 867 714). Desiya Pty Ltd dissolved the Agrigrain partnership as constituted on 30 June 2012. Desiya executed a share sale agreement with JV Enterprises Pty Ltd, FGMO Pty Ltd and Vinsente Pty Ltd on 30 September 2012, with the effective date of sale being 1 July 2012.... On and from 1 July 2012 Desiya Pty Ltd ceased being a partner in Agrigrain. Desiya no longer undertakes any commercial operations in any industry, including the grain trading and packing industry. Desiya has no persons subject to either employment contracts or any other form of contract for services. I resigned from employment with Agrigrain in June 2012. My last day of service with Agrigrain was 30 June 2012. From around July this year I have not had access to the Agrigrain business as I am not an employee and because Desiya is no longer a partner in the business. Desiya Pty Ltd will be wound up following judgment in this matter before the Court but will not be wound up until any fines and or costs orders made in this matter are paid and or dealt with to finality. 45In relation to the evidence of Mr Ringland, Mr Pritchard indicated he agreed with the contents of Mr Ringland's affidavit. 46In relation to remorse and contrition, Mr Pritchard deposed: In addition to the Ringland affidavit... I say that Desiya and myself are truly sorry for the tragic death of Mr Trevor Brown. I attended Mr Brown's funeral. I understand that Mr Brown's passing had a significant impact on a number of the partnership's employees because he was so well liked on site. From my dealings with him at work he was a competent, reliable employee and an overall 'good bloke and his passing is something, I on behalf of Desiya, deeply regret.

The offending conduct 47In assessing the objective seriousness of the offence, regard should be had to the risk, which, according to the charges, was the risk of receiving an injury by being struck by a moving vehicle or plant whilst a pedestrian at the premises. Specifically, the risk to Mr Brown whilst he was a pedestrian at the premises was that of being struck by an eight wheel rigid tipper truck known as the "L2 Tipper", driven by MrHolmes. The defendants failed to ensure Mr Brown was not exposed to that risk in the manner particularised in the charges. 48The charges described multiple failings to ensure Mr Brown's safety, including a failure to provide a safe system of work; a failure to provide necessary training instruction and information; a failure to undertake an adequate risk assessment; a failure to provide adequate supervision; and a failure to provide a safe working environment. 49There was no effective system at the premises to ensure vehicles and pedestrians interacted safely. Mr Holmes simply dropped Mr Brown off, failed to follow Mr Brown's progress after he alighted from the vehicle, commenced to drive off without sounding his horn and ran over Mr Brown as he walked in front of a vehicle from which visibility of the area in close proximity to the truck was very poor. 50Whatever system there was depended largely on workers exercising care when driving vehicles and alighting from vehicles. That was clearly inadequate in circumstances where there might be up to 50 employees on site and a large number of heavy vehicles and plant. 51An adequate risk assessment would have identified the risks associated with operating moving vehicles in close proximity to pedestrians. Such a risk assessment would have provided the basis for putting in place a safe system, including designated drop off and pick up zones for pedestrians and "exclusion zones" where moving vehicles or pedestrians were not permitted to go, buttressed by adequate information, training, instruction and supervision of workers. 52It seems to me that both Mr Holmes and Mr Brown were careless. Mr Holmes because he did not keep a proper lookout and commenced to move the vehicle without having any idea where Mr Brown was when he did so. I do not accept that Mr Holmes waited three minutes before moving off. Mr Brown, according to StevenCarney, walked in front of the truck, reasonably close to it, facing away from the truck as he walked. 53This carelessness may be taken into account in mitigation, but it by no means absolves the defendants. Whilst there were traffic management rules in place at the premises and it had been proposed to implement a Traffic Management Plan at the time of the incident - matters I have had regard to in the defendants' favour - the rules were inadequate. The traffic management system at the site prior to the incident primarily related to the enforcement of a 10km per hour speed limit around the premises. 54There were no documented procedures in place to separate moving plant from pedestrians. Mr Brown had not been given specific training that he should not walk in front of a powered stationary or moving vehicle. Nor was he given training that he could only be dropped off at a designated drop zone. Similarly, Mr Holmes had not been trained that he could only drop off passenger at a designated drop off zones. Moreover, the defendants' systems for driver training were not adequate in the circumstances as evidenced by the ASF.

Foreseeability and measures to avoid risk 55 It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; and Inspector Maddaford v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 at [88]. 56The defendants were clearly aware of the risk of pedestrians being struck by a moving vehicle because they had traffic rules in place and were moving towards implementing a more sophisticated Traffic Management Plan at the time of the incident. The fact that they recognised something needed to be done to improve the arrangements that existed at the time of the incident lies in their favour, but the fact is they had been operating for many years without an adequate traffic plan in place and the incident occurred at a time when the system of work was inadequate and the defendants knew it was inadequate. 57The steps taken by the defendants after the incident to prevent a recurrence are testimony to the fact there did exist available and feasible measures to avoid the risk.

Seriousness of the risk 58In Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94] the Full Bench stated: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequence might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.... 59This principle is consistent with s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999, which identifies as an aggravating factor, a grave risk of death to another person or persons. In this case, of course, the injury to Mr Brown was fatal, thereby reflecting a risk of the ultimate seriousness.

Maximum penalty 60In the context of considering the objective seriousness of the offence it is necessary to consider the maximum penalty. In Desiya's case it is $550,000. In Vinsente's case it is $825,000, given a prior conviction. 61 As it was stated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [30]-[31]: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick....

Deterrence 62The Court is required to give consideration in the sentencing process to general and specific deterrence: Capral Aluminium Ltd v Workcover Authority of New South Wales . Both aspects of deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare. ..." (Capral Aluminium Ltd v Workcover Authority of New South Wales at [74]). 63The prosecutor submitted that in the present case there was a need for a significant component for general deterrence to send a strong message to those employers engaged in the agriculture and rural sectors of the ever present risks to health and safety of workers when they are required to work around moving vehicles and plant. The prosecutor contended that the weight applied for general deterrence should be equally shared between Desiya and Vinsente. 64Based on Capral Aluminium Ltd v Workcover Authority of New South Wales , the defendants appeared to accept that the Court is required to include in its determination of penalty, consideration of the need for general deterrence. I accept the prosecutor's submission regarding general deterrence and in the penalties I will give appropriate weight to that factor applying it equally between Desiya and Vinsente. 65In respect of specific deterrence, the prosecutor submitted both penalties should contain a component for that factor, although it was recognised that Desiya no longer trades and is no longer a partner in the Agrigrain Partnership. Nevertheless, the prosecutor submitted there is no certainty that Desiya will not, at some future time, re-enter the industry as an employer. Accordingly, it was submitted there should be some small component for specific deterrence in respect of Desiya to take account of this possibility. 66In relation to specific deterrence the defendants referred to what was said in Capral Aluminium Ltd v Workcover Authority of New South Wales at [77], namely: [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. 67It was further submitted for the defendants that they had implemented significant measures since the incident in relation to traffic management and more generally in order to avoid a recurrence of what occurred on 2 March 2009. In light of these changes, it was submitted by counsel for Vinsente and adopted by counsel for Desiya that: [A]ny consideration of specific deterrence in this matter need not be substantial as there is a low risk of the Defendant re-offending having regard to the specific improvements it has implemented to address the subject incident. In relation to specific deterrence it is a rare case that the court would not impose a component in the penalty for specific deterrence. In this case, in light of the steps that have been taken by Agrigrain the court will be comfortably satisfied that the risk to health and safety the subject of this prosecution, has been adequately controlled and the risk of the defendant re-offending is also low and therefore only a modest component for specific deterrence should be imposed. 68The defendants took commendable and effective steps to ensure there would be no recurrence of the incident that caused Mr Brown's death. I accept the defendants' submission there is a low risk of the defendants re-offending having regard to the specific improvements they implemented to address what occurred on 2 March 2009. Moreover, Desiya no longer trades and the evidence was that it will be wound up. 69Consistent with the Full Bench decision in Capral Aluminium Ltd v Workcover Authority of New South Wales , there will only be a small component in the penalties for specific deterrence; the component for Vinsente will be slightly larger than that for Desiya because it continues to be an employer.

Prior convictions 70Vinsente has one prior conviction (Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007). Desiya has no prior convictions. Whilst the Court has recently convicted both defendants of offences under the Act (see Inspector Shepherd v Vinsente Pty Ltd [2013] NSWIRComm 8 - "Vinsente") it is clear from WorkCover Authority of NSW v Denson and others [2007] NSWIRComm 69; (2007) 162 IR 199 at [36] that "the reference in the definition of "previous offender" in s 4 of the Act to "been convicted of any other offence of any kind against this Act" should be interpreted as referring to convictions for offences of the requisite kind occurring prior to the offence then before the Court". In other words, there has to be a conviction for the first offence before commission of the subsequent offence. In the present case, the convictions for the earlier offences occurred after the offences in the present proceedings were committed. Consequently, the position is that Desiya comes before the Court with no prior convictions and Vinsente has one prior conviction dating back to 2007. 71In Vinsente I was prepared to accept that the circumstances of the incident that led to the 2007 conviction of Vinsente were sufficiently different from the circumstances of the offence in that case so as to not warrant a more severe sentence because of any continuing disobedient attitude of the defendant to observing the occupational health and safety laws. However, the circumstances of the incident that is the subject of the present proceedings are much closer to the incident leading to the 2007 conviction. Both involved a collision between a worker and a vehicle, both involved a failure to have procedures in place to avoid contact between plant and pedestrians, both involved using unqualified operators to drive the vehicles and both involved a failure on the part of the defendant in relation to training and supervision. 72Vinsente took some steps to avoid a recurrence but there was no evidence that following the conviction in 2007 Vinsente had taken early steps to implement, in a systematic way, such matters as "no go zones" and marked off pedestrian areas as mentioned in his Honour's decision at [8]. There was no evidence as to why no proper traffic management plan was put in place between December 2007 when Hart CIM gave his decision and March 2009 when Mr Brown was tragically killed. I propose to take this into account in sentecing Vinsente.

Guilty pleas 73In respect to the guilty pleas, I have taken the same approach as I did in Vinsente given the same circumstances exist. That is, Desiya will receive a discount of 25 per cent and Vinsente 22.5 per cent.

Cooperation, safety record 74As for cooperation and safety record, I adopt what I said in Vinsente, namely: It is accepted there was full co-operation with the investigation by WorkCover Authority of New South Wales by the defendants. It is also accepted that the evidence supports a conclusion the defendants are good corporate citizens. Moreover, I note the Agrigrain business has been operating for nearly 30 years across a large site with 40-50 employees involving the use of large numbers of vehicles, plant and equipment. With only one prior conviction (Vinsente) one may conclude the defendants have taken their health and safety obligations seriously and that it has a relatively good health and safety industrial record.

Partnership 75In the previous prosecution the issue arose as to the approach to sentencing defendants who operate a business in partnership. The same issue arises here. No different considerations apply and so I relevantly adopt what was determined in Vinsente at [82]-[97].

Contrition and remorse 76In respect of remorse and contrition I am satisfied the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act have been met by both defendants. I note, in particular, the commendable and tangible assistance given to Mr Brown's daughters.

Convictions 77Having regard to the guilty pleas, the evidence in these proceedings and the submissions of counsel, I convict the defendants of the offences under s 8(1) of the Act.

Victim impact statements 78Counsel for the prosecutor tendered five victim impact statements: a statement by Mr Brown's mother, Gwyneth Norma Crook of 22 November 2012; a statement by Mr Brown's daughter, Cassandra Lee Brown dated 30 November 2012; a statement by Mr Brown's sister, Wendy Maree Findlay dated 4 December 2012; a statement by Mr Brown's sister, Robyn Amey dated 6 December 2012; and a statement by Mr Brown's brother, Garry Ivan Brown dated 3 December 2012. The Court received the statements. The statements were unsworn and the makers of the statements were not required for cross-examination. 79Garry Brown read his statement in Court. I have read the remaining forurstatements. Garry Brown said that the death of his brother had affected him emotionally and psychologically. He said he and his brother were good mates, although at some point they had a falling out. He said one day he had hoped there would be a reconciliation between them but now that opportunity was lost. 80Garry Brown said his brother's death brought back memories of the death of his father in a road accident when Garry was five years old. He went on to say: All of the sadness and anxiety of that time came flooding back to me like a tidal wave. Although I was only very young, the affect at the time on my mother and my brother and sisters was devastating. The fact that they both died in a similar way for some reason, which I cannot explain, has stuck in my mind. They say time heals wounds and it does. Emotions take longer to heal than physical wounds and in time I'm sure I also will heal from the loss of my brother, as I have of my father's passing. They were probably the two most important men in my life, along with my grandfather, and I dearly miss them. The other thing that disturbs me is the thought of the way in which my brother died; he would have been in a great deal of pain. Mum was at the hospital with him after the incident and told me he was very distressed about the fact he was having trouble breathing due to his chest injuries. I find this difficult to think about but hard to avoid thinking about. I feel sorrow for his daughters and granddaughter; this has left a huge void in their life, no doubt. Finally, I would like to say that I do believe something good comes out of every tragedy such as this, maybe not always apparent or immediate. But I would like to think Trevor's death was not in vain, that somehow this tragedy will be a catalyst for change to avoid this happening to others and their loved ones. Thank you for the opportunity to present this statement. 81The other statements I have referred to conveyed a profound sense of shock at Mr Brown's death. They spoke eloquently of the love they had for their son, father and brother, the tremendous sense of loss those family members felt and of their grief and suffering. 82The Court has expressed its deepest sympathy to Mr Brown's family for the loss of a father, son and brother. The Court is limited in the use that may be made of victim impact statements (see R v Previtera (1997) 94 A Crim R 76; R v Mansour [1999] NSWCCA 180). However, such statements have a most useful role in providing family and friends of those killed in workplace incidents an opportunity of telling the world how they have been affected and in conveying what awful tragedies workplace deaths are. As I have said in earlier cases, it also assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace.

Penalties 83I have decided the appropriate penalties in this case are $200,000 in respect of Vinsente and $130,000 in respect of Desiya.

Orders 84The Court makes the following orders: Matter No IRC 65 of 2011 - Desiya Pty Ltd (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $130,000 with a moiety to the prosecutor. Matter No IRC 69 of 2011 - Vinsente Pty Ltd (3) The defendant is convicted of the offence. (4) The defendant is fined an amount of $200,000 with a moiety to the prosecutor. 85The Court further orders that the defendants shall jointly and severally pay the prosecutor's costs in an amount as agreed or assessed.

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: 13 February 2013