Inspector Stephen Charles v Port Kembla Copper Pty Limited

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 (NSW)

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 Department of Mineral Resources (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor (2005) NSWIRComm 1 Inspector Belley v Port Kembla Copper Pty Limited (2004) NSWIRComm 98 Inspector Brett Jurmann v Port Kembla Copper Pty Limited [2004] NSWIRComm 150 Inspector Yeung v Donald Wilson trading as Wilson's Tree Service (2004) NSWIRComm 346 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd (2004) NSWIRComm 337 R v Shenton (2003) NSWCCA 346 R v Thompson, R v Houlton 49 NSWLR 383, 115 A. Crim. R. 104 Veen v R (No. 2) (1988) 164 CLR 465 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Ankucic) v Mc Donald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284

Prosecutor: Mr P Skinner of counsel Solicitor: Mr H McAllister LEGAL REPRESENTATIVES: Defendant: Mr P Hall, Senior Counsel Solicitor: Ms P Emery Ms S Sheen

Inspector Stephen Charles v Port Kembla Copper Pty Limited (ACN 076 258 976)

Prosecution under s8(2) of the Occupational Health and Safety Act 2000 (NSW)

1 Port Kembla Copper Pty Limited ("the defendant") has been charged with an offence under s8(2) of the Occupational Health and Safety Act 2000 (NSW) ("the Act") of failing on 31 August 2002 to ensure that, as an employer, people, other than its employees, and in particular, Vasile Pop, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work.

2 The charge was particularised as two failures, namely; (i) a failure to provide and maintain safe systems of work for the alignment of the Anode Furnace Hood at the West Anode Furnace, and, (ii) a failure to adequately train, instruct and supervise non-employees, in particular Vasile Pop, in a safe system for aligning the Anode Furnace Hood.

3 The defendant entered a plea of guilty to the charge on Wednesday 28 July, 2004. 4 The defendant's undertaking involved the smelting and refining of copper product which took place at its premises at Military Road, Port Kembla, New South Wales, ("the premises").

5 On the day of the offence, at the defendant's premises, riggers were adjusting a hood on the west anode furnace in order to align the hood into its correct position. During this process, a temporary lifting lug, which had been utilised by the riggers to facilitate the alignment, broke off and struck one of the riggers, Mr Pop, on the face. He was rendered unconscious and sustained fractures to his facial bones, the amputation of his nose and injuries to his left arm and right little finger. Factual Background 6 In August, 2002, the defendant shut down its smelting and refining operations in order to undertake a programme of refurbishment and repair works. This programme had been undertaken on a regular basis since 2000. One of the refurbishment activities involved the fabrication and installation of new exhaust hoods and duct systems for its two anode furnaces (the west anode furnace and the east anode furnace) which were located in an area called the secondary smelting area. 7 This yearly programme of refurbishment and repair was a large and complex operation which required detailed planning and specialised knowledge. An activity undertaken during the shutdown programme ("the shutdown") required that new plant be designed, fabricated and installed. The defendant's operations, maintenance and engineering group ("the engineering group") was responsible for designing the plant and equipment. 8 Hoods and ductwork comprised two items of plant, which had to be designed and fabricated for the two anode furnaces. On 4 January, 2002, the defendant engaged a labour hire firm, Entec, to undertake the design work. The defendant also employed its own draughtsperson to produce drawings depicting the dimensions of the hoods and ductwork. 9 The defendant's engineering group developed procedures, in the form of Job Safety and Environment Analysis documents ("JSEAs") for the removal of existing equipment and the installation of newly fabricated equipment during the shutdown. 10 The installation of new, (or renovated), plant and equipment was called "capital works". A subgroup of the defendant's engineering group, the project engineering group, was responsible for planning of the capital works, ("the planning engineering group"). 11 Preparation for the shutdown included a Shutdown Plan which was devised by the defendant earlier in 2002 and which outlined various safety procedures to be implemented during the shutdown. 12 Because of the size, complexity and specialised nature of the shutdown procedure, the defendant engaged a number of specialised contractors to perform various tasks. 13 Alan Croft ("Mr Croft"), an engineer employed by Hutch Associates Pty Limited, was engaged by the defendant to work as capital projects manager, and, from about June, 2002, to assume the role of shutdown manager. Directly under his supervision was the defendant's project engineering group, which was responsible for the coordination and planning of capital works. Mr Alex Milevski, an engineer employed by the defendant, was a member of this group. 14 The defendant also engaged Mr Ross Irwin, ("Mr Irwin"), as a project superintendent through his company, RJ&A Enterprises Pty Limited. Mr Irwin reported directly to Mr Croft. Mr Irwin was responsible for coordinating and inspecting the works in relation to the hoods and, supervising the contractors who were engaged to work on the installation of the hoods. The project engineering group was responsible for the ductwork. 15 As project superintendent, Mr Irwin was also responsible for ensuring compliance with OHS policies and procedures which were developed by the defendant for the shutdown. These policies and procedures included the preparation of JSEAs by the project engineering group in relation to the replacement of the hoods; and the conduct of weekly meetings with those contractors working on the two anode furnaces. 16 The contract for the fabrication and replacement of the hoods was awarded to AGI Australasian Engineering Pty Ltd ("AGI"), sometime in July, 2002. 17 The defendants provided AGI with a series of show fabrication drawings which were prepared by members of the project engineering group. The hoods weighed 7 tonnes each without refractory lining, and, were five metres by three metres by four metres. They were designed to be fabricated in four sections, with a number of permanent lugs, turnbuckles, hangers and flanges, which were used to support the hoods from the supporting steel frame above the anode furnaces. Each of the four sections of each hood was built with two temporary lifting lugs. These lugs were about four hundred millimetres by fifty millimetres by ten millimetres with an attachment hole through the lug. The purpose of these lugs was to allow the fabricator to manoeuvre the equipment in AGI's workshop while the hoods were being fabricated. 18 AGI was contracted to replace the hoods, once the fabrication was complete, on each of the anode furnaces. AGI engaged Martin Roberts ("Mr Roberts") from 360HR Pty Ltd, a technical expertise labour hire company, to work as the shutdown coordinator. His responsibilities included supervising the installation and alignment of the hood above the west anode furnace. Mr Graham Shute ("Mr Shute"), an AGI employee, was responsible for supervising the replacement of the hoods and supervising workers from D&D Services (Australia) Pty Ltd ("D & D Services") who were engaged by AGI to install the hoods. Mr Shute reported directly to Mr Roberts. 19 D & D Services was a labour hire company based in Wollongong which was engaged by AGI to supply the workers to perform the installation of the hoods. Mr Pop was employed by D & D Services as a certified rigger and was contracted to work for AGI during the shutdown at the defendant's premises. 20 Ian Peter Wilson, the defendant's general manager was overall head of the shutdown programme, with the title, "General Manager Operation". 21 The hoods were delivered to the defendant's holding yard on or about 28 August 2002 and installed sometime between 28 and 31 August 2002. Each fully assembled hood with refractory lining weighed approximately 23 tonnes. 22 Prior to the installation of the hoods Mr Roberts, in the presence of Mr Irwin and Mr Croft, observed that the lugs on the hoods looked "light". Following discussion between Messrs Roberts, Croft and Irwin about a bent lug which had been observed on a section of one of the hoods, a decision was taken by these three men to remove all the lugs on the hood. This was not done. Nor were any steps taken to advise the defendant of their concerns regarding the lugs, or of the decision to remove the lugs. A risk assessment which had been discussed by Mr Irwin and Mr Roberts prior to the installation did not include the condition or suitability of the lugs on the hoods for use when installing or aligning the hood. 23 On 31 August, 2002, when the hoods for the anode furnaces were installed onto supporting steel structures, known as hangers, it was not possible to see the lugs from the floor of the secondary smelting area. 24 When the hood for the west anode furnace was installed it was approximately fifty millimetres out of alignment. This required that the hood be lifted to allow the riggers, including Mr Pop, from D & D Services, to correctly align the hood above the furnace by tightening the turnbuckles. Prior to this event occurring Mr Croft instructed Mr Irwin, who had been working excessive hours, to leave the workplace and rest. Mr Croft directed Mr Milevski to assume Mr Irwin's responsibilities, which included the supervision and installation of the west anode furnace hood. 25 Mr Milevski, sometime after assuming Mr Irwin's responsibilities attended a meeting with Messrs Roberts and Shute in an AGI office located in the secondary smelting area near the anode furnaces. The purpose of the meeting was to discuss the evening's work including the alignment of the hood on the west anode furnace. 26 At about 4.40pm, while the meeting was taking place, the workers from D & D Services commenced the task of aligning the hood apparently without instruction and without direct supervision. At the time of the accident, Mr Pop, and the other riggers, were each standing on the corners of the hood in order to adjust the turnbuckles which were attached to the supporting steel structure. One of the temporary lugs, the north-east lug, which was attached to a chain, suddenly broke off and struck Mr Pop. Mr Pop was knocked over a railing and suspended fifteen metres above the floor by his safety harness. 27 A "significant safety occurrence" report compiled by the defendant following the accident and signed by Mr Milevski, identified the causes of the accident and suggested corrective action as follows: " Root Causes: i) The lug was not designed, or capable, of supporting the entire weight of the assembly. ii) The failed lifting lug was not intended for installation of the hood in its fully assembled form- it was only designed for workshop manoeuvring during fabrication of the individual components, and to assist in the installation of the individual components onto the hood assembly. iii) This was not clearly recognised by the installation contractor. Corrective Actions : i) A procedure for the alignment and making safe of the hood was devised and implemented. ii) All similar remaining lifting lugs were removed from the assembly to prevent any further misuse.

28 On sentence, counsel for the prosecutor, Mr Skinner, tendered an agreed statement of facts and a sketch plan. Also tendered was an inspection report, prepared by the prosecutor, and accompanying photographs, which detailed a visit, by the prosecutor to the defendant's premises. The report makes reference to a steel lifting lug although it is not stated in the report whether the inspector is informed that that particular lug was the one that broke off and struck Mr Pop on 31 August, 2002. The series of photographs taken by the inspector on the same day as his inspection includes a photograph of a lifting lug with the following caption: "The apparent lifting lug being the agency of the accident ..."

29 The report also includes a second visit by the prosecutor to the defendant's premises on 3 March 2003. On that day the prosecutor made observations about the west anode furnace and its component parts. 30 Mr Skinner also tendered in the prosecutor's case a second series of photographs, which I was informed, were taken of the west anode furnace, and, the "failed lug" on 31 August, 2002, after the accident. Photograph J in that series depicts lugs on the west anode furnace which Mr Skinner described as "stronger" than the temporary lugs which were used by the riggers. Some handwriting and an arrow underneath the photograph suggests that the "stronger" lugs were the ones that should have been used by the riggers on 31 August, 2002. 31 Also tendered on sentence for the prosecutor was the defendant's criminal record.

32 Mr Hall of senior counsel, appearing for the defendant tendered a supplementary statement of facts, a document called "Statement of Evidentiary Issues", and, two documents entitled "Shutdown #5 - 2002 Flow Chart" both of which depict the hierarchy of responsibilities in relation to the 2002 shutdown programme. These documents show Mr Ian Peter Wilson as the person in charge of the shutdown operations in 2002. 33 The supplementary statement of facts provided detailed information about the status, duties and responsibilities of the contractors involved in the defendant's 2002 shutdown programme. It also set out the defendant's version of events in relation to the installation of the hoods on the anode furnaces and the roles and responsibilities of the various contractors involved in the fabrication, installation, supervision and system of work of, and for, the hoods, and their component parts. 34 The defendant also relied on two affidavits which were read without objection and admitted into evidence. 35 One of the affidavits, the affidavit of Ian Peter Wilson, contained information in relation to the defendant's copper smelting and refining operations at its premises; and information concerning the 2002 shutdown, including the work required to be performed, staffing requirements and the necessity to enlist contractors with specialised knowledge and information in relation to the fabrication, installation and supervision of the hoods. 36 The second affidavit was sworn by Wayne James McNamara ("Mr McNamara") who was employed by the defendant as its occupational health and safety superintendent from 8 July 2002 until 6 October 2003, which included the 2002 shutdown period. Mr McNamara's affidavit contained detailed information as to the safety systems put in place by the defendant specifically for the 2002 shutdown programme; and, detailed information concerning various measures implemented by the defendant following the events of 31 August, 2002.

37 Mr Skinner submitted for the prosecutor that the offence concerned work being performed in a heavy engineering factory where a very heavy piece of equipment was being manipulated by skilled men, namely riggers, who, nevertheless were performing the work without proper systems or supervision. The task of realigning the hood on the west anode furnace in those circumstances was therefore inherently flawed and the risk of injury was high. Actual injuries to Mr Pop occurred. 38 The prosecutor then proceeded to address an issue which he termed "parity". Explanations were offered to the Court as to why other parties, namely AGI and Mr Irwin, were not prosecuted for their respective roles in the circumstances leading up to and including the accident on 31 August, 2002. 39 It was contended that general deterrence was applicable here because the Court was dealing with an enterprise concerned with heavy industry. Although the defendant had a laudable system of paper work it contracted to specialists. 40 The prosecutor then adverted to paragraphs 36 to 40 of the defendant's supplementary statement of facts which purported to deal with the conduct of the contractors in relation to the temporary lifting lugs on the west anode furnace; and, the fact that the defendant was unaware of any potential problems posed by the lugs, although at least AGI and Mr Irwin were on notice of potential problems. 41 According to the prosecutor, the distinction sought to be drawn by the defendant between itself and the contractors with respect to knowledge of, and conduct concerning, the potential problems posed by the temporary lugs only went "so far". What in fact was happening was that the defendant contracted in specialists then left them to get on with the job. 42 In relation to specific deterrence the prosecution referred to the defendant's evidence which suggested that the defendant has been shutting down its Australian operations from about July 2003. He suggested that these factors may be relevant to the issue. 43 In relation to the issue of reasonable foreseeability the prosecutor submitted that, objectively, the risk to safety was reasonably foreseeable in the circumstances because the temporary lifting lugs were built for a particular purpose (to enable manipulation of the sections of the hoods during fabrication stage). If used for a purpose for which they were not designed, namely to align the hood with the west anode furnace, then experienced personnel, not the riggers, would form the view that the lugs were unsuitable. Mr Skinner also submitted that although the defendant's management did not know that the temporary lifting lugs were dangerous, personnel from AGI and Mr Irwin had expressed concerns about them and a direction had been given to have them removed. This direction had not been complied with. 44 The prosecutor, in relation to the defendant's record of prior convictions, submitted that in its short period of management in Australia the defendant had been convicted on four prior occasions. This safety record tended to confirm that the risks of working in heavy industry are inherent.

45 Mr Hall QC for the defendant submitted that the nature of the work being conducted at the time of the offence, involved a high level of planning and specialised contracting. The anode furnaces were one subset of a whole range of operations which came within the shutdown plan. The planning involved AGI as specialist contractors, rigging by D&D Services, and project management through Mr Irwin and his company RJ&A. The realignment was not part of the original programming. It formed a minute aspect of the whole range of specialist functions forming part of the shutdown plan. 46 It was submitted by the defendant that the offence arose out of the failure of the contractors to pick up the issue with regard to the temporary lifting lugs: and also the actions of the rigging crew undertaking the realignment operation unannounced. While the defendant supervised the coordinating mechanisms it was not its function to do the alignment work, which was a task performed by the contractors. 47 The defendant, in developing the submission concerning the limits of supervision, pointed out that the project engineering group, of which Mr Milevski was a member, was responsible for the co-ordination and planning of the capital works. Capital works were works in which new or renovated plant and equipment was to be installed or replaced (such as the new ducting for the hoods and the newly fabricated hoods themselves). 48 Mr Irwin, according to the defendant was responsible for occupational health and safety policies developed for the shutdown operations. Nothing, however, was recorded in the minutes of the various meetings held with Mr Irwin, the defendant and AGI personnel in attendance, by either Mr Irwin or AGI (Mr Roberts) about the need to plan for the alignment. This should have been brought to the attention of the planning meetings so that a plan could be formulated before allowing the rigging crew to undertake the task. When Mr Irwin was sent home, Mr Milevski was put in charge. He was in the process of discussions with two other persons about the alignment issue when the accident occurred. There is no evidence about who, if anyone, instructed or directed the riggers to commence the task of aligning the hood. 49 In addressing the issue of reasonable foreseeability of the risk, the defendant placed reliance on the evidence which suggested that the defendant had no notice that the rigging crew were poised to undertake the realignment without independent instruction or direction. Nor were the temporary lifting lugs visible from the ground. This particular fact, the defendant said, is borne out by reference to photograph two of the bundle of photographs tendered into evidence by the prosecution which were taken by the prosecutor of the west anode furnace hood on 10 February, 2003. Minutes of meetings recorded before the accident show that the lifting lugs were discussed. The meeting notes of a meeting attended by the defendant, AGI and Mr Irwin on 24 June, 2002 record the observation that there were no lifting points on the hood for installation. Also recorded in those minutes is a request made to design lifting lugs. These minutes of meetings show also the level of detail in the planning for the shutdown. 50 The defendant contended that it was relevant to the issue of reasonable foreseeability that AGI fabricated the temporary lifting lugs then left them on the hoods without placing on them a load lifting notice. In any event AGI should have removed them. The fact that the defendant had no knowledge that D & D Services were primed and ready to realign the hood without independent instruction and direction is also relevant. 51 In written submissions the defendant expanded its argument that the risk to safety was not reasonable foreseeable. 52 In respect of the lifting lugs reliance was placed on the following evidence: (i) AGI, as fabricator and supplier of the anode furnace hoods was in the best position to ensure that the lugs were removed from the hoods at the appropriate time, that appropriate load bearing information was placed on or near the lugs and that as supplier of the plant and equipment, inspections were carried out to ensure that the lugs were not used inappropriately (i.e. to lift the entire hood in order to align it. (Statement of Evidentiary Issues, paragraphs 1.4, 2.5 and 3.2); (ii) Mr Irwin was aware that the lifting lugs were not suitable for lifting the anode furnace hoods. (Statement of Evidentiary Issues, paragraph 2.6); (iii) Mr Roberts failed to investigate the matter prior to permitting the installation and alignment of the anode furnace hoods. (Statement of Evidentiary Issues, paragraph 2.7); (iv) Neither Mr Roberts nor Mr Irwin took steps to ensure that other AGI supervisory personnel were aware of their concerns regarding the lifting lugs or ensured that the lifting lugs were removed prior to installation or alignment (Statement of Evidentiary Issues, paragraphs 2.7 and 2.8); (v)Neither Mr Irwin nor Mr Roberts brought to the attention of the company their concerns regarding the lifting lugs (Statement of Evidentiary Issues, paragraph 3.1); (vi) Mr Irwin was aware that the lugs were being installed on the anode furnace hoods to allow the sections of the hoods to be moved in the workshop during fabrication (Statement of Evidentiary Issues, paragraph 2.4); (vii) No personnel from AGI inspected the anode furnace hoods or the lifting lugs either at the time the hoods were delivered to the company or at any time prior to the incident (Statement of Evidentiary Issues, paragraph 2.5).

53 The defendant's systems of work which it had developed for the shutdown, and implemented, represented another factor in support of its argument that the risk to safety was not reasonable foreseeable. The evidence in support of this factor was outlined by the defendant as follows: (i) The company had comprehensive systems in place in relation to, among other things, communication between the company, its supervisory personnel and the workforce engaged to work during the 2002 shutdown; (ii) Neither Mr Irwin nor any other AGI personnel raised the issue of the lifting lugs or instruction given to remove them, during any of these meetings at which company personnel attended; (iii) Mr Irwin despite being certified to review JSEAs, failed to ensure that the lugs were identified in a JSEA or that the JSEA was amended to include the removal of the lifting lugs prior to the installation or alignment of the anode furnace hoods (Statement of Evidentiary Issues, paragraphs 3.3, 3.4 and 3.5; affidavit of James McNamara, Annexure 6); (iv) Mr Roberts, when reviewing the JSEA with Mr Irwin, also failed to ensure that the lugs were identified in the JSEA or that the JSEA was amended to include the removal of the lugs prior to installation or alignment of the anode furnace hoods (Statement of Evidentiary Issues, paragraphs 3.4, 3.5(b)); (v) Mr Irwin and Mr Roberts failed to follow the risk assessment procedures put in place by the company for the shutdown of its operations in 2002. (Statement of Evidentiary Issues, paragraph 3.5(c), (d), (g), (h); Affidavit of James McNamara, Annexure 6, page 4); (vi) Mr Irwin and other AGI personnel failed to ensure that a crucial crane lift study was undertaken prior to the alignment of the hood in accordance with the company's policies (affidavit of James McNamara, Annexure 9; Statement of Evidentiary Issues, paragraph 3.5(e), (f)).

54 Another factor which the defendant asserted was relevant to the issue of reasonable foreseeability was the provision of information instruction and supervision in relation to the alignment of the hood. The evidence in support of this was as follows: (i) There was a failure by Mr Irwin and Mr Roberts to ensure that sufficient instruction and information was prepared and discussed with D&D Services riggers prior to the alignment of the hood and that supervision was provided (Statement of Evidentiary Issues, paragraphs 3.5(d), 3.6(a), 3.6(b) and 3.6(c)); (ii) There was a failure by Mr Irwin, AGI personnel and D&D Services to ensure that D&D Services workers were instructed not to proceed with any work until competent supervision was present at the time the alignment work was performed (Statement of Evidentiary Issues, paragraph 4). 55 The defendant also developed a submission designed to show that the accident on 31 August was a direct result of failures by specialised contractors such as AGI and Mr Irwin.

56 AGI, for example, had responsibility for the placement of the hood. It was essential to the competent, safe undertaking of the task of alignment of the hood, to properly coordinate activities between it, the supervisor of the rigging crew (Mr Shute) and the rigging crew. 57 According to the defendant, Mr Irwin was responsible for coordinating the replacement of the hoods over the anode furnaces. In addition, Mr Irwin identified the temporary lifting lugs upon the delivery of the hood to the defendant's premises. He instructed AGI to remove them but, inexplicably, the instruction was not complied with. 58 The defendant also contended that D & D Services, a labour hire company, shares responsibility for the failures which led up to and caused the accident on 31 August. D & D Services undertook the alignment task and utilised the temporary lifting lugs. The rigging crew were not properly supervised. This was the responsibility of D & D Services, not the defendant. 59 The defendant also submitted that the contractors (namely AGI, Mr Irwin and D & D Services) shared culpability and responsibility with the defendant for the failures to adequately supervise and instruct. According to the defendant, it is unjust to conclude that because it had direct control over the workplace that it must therefore be more culpable than the other parties who contributed to the creation of a risk to the safety of the workers. The primary cause of the risk to safety said the defendants, was attributable to the other parties against whom prosecutions had not been launched. In such circumstances the defendant was entitled to be aggrieved because it had relied on those other parties to supervise and take such actions as may be necessary to ensure the realignment of the hoods was safe. 60 The defendant also pointed to the current status of D & D Services; Mr Irwin's company RJ&A; and AGI. D & D Services and RJ&A continue to operate as incorporated entities. AGI went into receivership, however, on 9 January, 2003, a number of former AGI employees, including Mr Shute, became directors of a newly incorporated entity named AGI Engineering (Wollongong) Pty Limited which is a going concern. The current status of these companies and the involvement of former managerial personnel should be taken into account, submits the defendant, when assessing the penalty to be imposed on the defendant. 61 The defendant recognised that general deterrence must be taken into account in the sentencing process but suggested that given the evidence as to the state of its business, specific deterrence had no practical role, and may be disregarded if the Court is satisfied that the risk of re-offending is low or non-existent. 62 The defendant also submitted that the Court should take into account on sentence the following additional factors: (i) its early plea of guilty; (ii) its cooperation with the investigation; (iii) subsequent measures by it to improve safety; (iv) its proactive investigation of the accident; (v) comprehensive systems were in place before the accident; (vi) its demonstrated commitment to safety through the development and implementation of extensive occupational health and safety procedures, including specific and comprehensive systems dealing with the 2002 shutdown (namely, the shutdown policy, safe work package, safety tutorial, dedicated OHS shutdown team, risk management procedure, and associated systems dealing with inductions, permits, inspectors and audits; (vii) its record of prior convictions.

63 An assessment of the nature and quality of the offence first requires consideration of the maximum penalty prescribed by legislation. The defendant has a history of offences against the provisions of Division 1 of Part 2 of the Act. This triggers the operation of section 12 of the Act and exposes the defendant to the higher statutory maximum penalty of $825,000.00. 64 The maximum penalty functions as a legislative yardstick by which to weigh the gravity of an offence. This jurisdiction has emphasised many times, in the context of sentencing for occupational, health and safety offences, that the proper approach first, is to assess the gravity of an offence by reference to objective criteria; and, then assess any personal mitigating factors, while ensuring that attention to such factors does not produce a sentence that fails to take into account the objective gravity and seriousness of the offence.

Safety systems, workplace practice and procedures in place at the time of offence.

65 The failures that formed part of the particulars of the charge focus on the prevailing circumstances which concerned the realignment of the hood on the west anode furnace. Although there was no system or procedure devised for that particular task, the evidence before the court reveals that the defendant had in place, at the time of the offence, a comprehensive programme which it had developed over a considerable period of time for the shutdown. The installation of the hoods on the two furnaces was one activity which formed part of a large and complex operation. A whole range of procedures had been developed and implemented in order to meet the requirements of safe working. JSEAs were developed, for example, by the defendant's engineering group. The shutdown plan contained a number of safety procedures which were implemented during the period of the shutdown. Because of the specialised nature of the works, a hierarchy of supervision was established which consisted of the defendant's employees, and, a number of specialist contractors with various roles and responsibilities. The overall head of the structure was Mr Ian Peter Wilson, the defendant's general manager. 66 The existence of comprehensive safety measures, and, the implementation of those measures up to, and at the time of the offence, is a factor which I take into account as mitigating the seriousness of the offence: Department of Mineral Resources (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 25, per Walton J, (Vice-President). 67 These measures must be tempered, however, by the application of the well-entrenched principle which dictates that in workplaces within this State, defendants have a positive obligation to inform themselves of safe working practices. Here, safe working practices required a procedure to be devised for the realignment of the hood onto the west anode furnace. Such a procedure, ideally, would have considered the unsuitability of the temporary lifting lugs as a lifting mechanism in the installation and realignment process. 68 The offence arose in circumstances where the shutdown programme was implemented in an environment which was potentially hazardous, and, where the defendant's operations involved the moving around and installation of heavy equipment which constituted an inherently dangerous enterprise. This set of circumstances highlights another well-entrenched principle of workplace safety, namely, the requirement of an employer to be proactive in relation to safety issues and to be on the offensive and search for, detect, minimise, and whenever possible, eliminate all risks to safety. 69 In Kembla Coal and Coke at 26, Walton J, emphasised the principle in the following terms: " The system of effective risk management required by the Act is not met merely by responsive actions to a risk which has been demonstrated to exist. There must be a system of searching for and identifying all possible risks and instituting safety measure to guard against those risks."

The defendant's culpability and the culpability of specialist contractors

70 The extent of the defendant's culpability as an indicator of the seriousness of the offence must be measured in the context of the culpability, if any, of the specialist contractors. 71 The prosecutor when addressing the Court referred to the principle of parity. (This was in the context of an explanation proffered by the prosecutor as to why certain contractors were not prosecuted for their respective roles leading up to and including the incident). The defendant also referred to the principle of parity as relevant when making submissions as to the respective responsibilities of the contractors and the defendant. 72 The parity principle is generally relied upon when complaint is made that there are deficiencies in the sentencing of co-offenders, or, different offenders who have been found guilty of the same or similar conduct. The issue here is more correctly characterised as the contribution, if any, of the various parties to the risk to safety, and the identification of which party should bear the greater responsibility, in circumstances where the defendant seeks to establish that an injustice has resulted because of the failure to prosecute other responsible parties: WorkCover Authority of New South Wales (Inspector Ankucic) v Mc Donald's Australia Limited and Another (1999) 95 IR 383 at 433 to 438 per Walton J, Vice-President. 73 The authorities which have dealt with the respective culpabilities of other responsible parties who have not been prosecuted have been collected and analysed by Walton J, in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [191] to [195]: "In Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 , a Full Bench of the Court considered that the absence of prosecution against other parties upon whom a defendant had reasonably relied meant that the sentence imposed upon the defendant gave rise to a justifiable sense of injustice (at 322-323). This contention was also raised in WorkCover Authority (NSW) (Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383 . In that case the defendants relied upon the Nesmat decision and Wong v Melinda Group Pty Ltd (1998) 82 IR 118 . In Wong , the defendant was charged after a window cleaner died as a result of a fall from a building owned by it. Charges were only laid against the defendant, even though the deceased was not its employee and it had not been informed that the work was occurring contrary to its own policy. The Court concluded that these circumstances were relevant to the assessment of penalty. Of particular relevance was the "equality of treatment in terms of the relative seriousness of the offence". In the McDonalds case I considered that what the Court was paying regard to in Wong was the (at 437): "... actual contribution of the defendant for the purposes of assessing penalty ... [having] regard to the fact that the defendant was virtually wholly removed from the causal factors for the incident or the work actually performed by the window cleaner and even lacked knowledge of the performance of the work actually performed ..." Further, I stated (at 437): "The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken. This approach is consistent with the approach in Nesmat and Wong . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against Lennard and Mercer. Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s 17 and the nature and quality' of any offence committed by them." I note also that this analysis of Nesmat and Wong has been affirmed by Wright J, President, in Walco (No 2) where his Honour stated (at par 31): "... In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant." And further (at paragraph 33): "The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the justifiable sense of grievance' is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509 ) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Ltd v WorkCover Authority (NSW) (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (at 436-438). The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them." 74 The foregoing analysis emphasises the relevance of assessing the culpability of the defendant by reference to the roles and responsibilities of the parties who have not been prosecuted, to establish whether the defendant has a justifiable sense of grievance which may, in turn, affect the penalty imposed on it. This does not mean, however, engaging in an inquiry which would require specific findings, as to culpability to be made against the other parties. Those other parties are not before the Court and have not had an opportunity to place material before the Court. 75 The defendant placed much emphasis on the fact that AGI fabricated and supplied the hoods complete with temporary lifting lugs which were never designed to life the weight of a fully assembled hood, and, which should have been removed (by AGI) prior to installation. According to the defendant, despite the evidence that AGI knew the capacity of the temporary lifting lugs and the purpose for which they were designed, and, Mr Irwin was aware that the lugs were not suitable for lifting the anode furnace hoods, this information was not disclosed to the defendant, although there was ample opportunity to do so, though, for example, the forum of daily and weekly meetings which were attended by the defendant, as well as by the contractors. 76 The defendant also contended that D&D Services, a labour hire company, was also culpable because the responsibility for employing the rigging crew lay with D&D Services, not the defendant. 77 The evidence before the Court on sentence does not point to a defendant virtually wholly removed from the causal factors surrounding the accident (cf Wong v Melinda Group Pty Ltd (1998) 82 IR 118). What the evidence does disclose is that the defendant was overall in charge of the shutdown programme, having installed Mr Ian Peter Wilson as general manager of operations. The installation and alignment of the hood took place at the defendant's premises. The installation of the hoods on the furnaces was part of capital works. The defendant's project engineering group, of which Mr Milevski was a member, was responsible for the co-ordination and planning of the capital works. The defendant formulated the shutdown programme which included safety measures to be implemented such as the JSEA documents, as part of the programme. The defendant's employee, Mr Milevski, was placed in charge of supervising the alignment operation, shortly before Mr Pop's accident, having assumed Mr Irwin's responsibilities which included the supervision of the installation of the west anode furnace hood. 78 I am of the view that the defendant's culpability in relation to the circumstances described above is of a higher degree than that of the other parties. The defendant was in overall control of the alignment operation which was taking place at the its premises. The workforce at the defendant's premises, engaged in the shutdown programme, consisted in part of non-employees unfamiliar with the defendant's workplace environment. The defendant devised and implemented comprehensive safety procedures aimed at the smooth progress of the shutdown programme. It did not, however, devise any safe system for the realignment procedure or undertake any assessment of any risks associated with that procedure. 79 A defendant, guilty of an offence under the occupational health and safety legislation cannot deflect responsibility for its actions. The duty to ensure safety rests on all employers. Here, the defendant was responsible for operations taking place in a workplace with large size plant and equipment in use and with workers operating at heights. In such circumstances, and in line with well established principles, the defendant's obligation of informing itself of safe working necessarily entailed formulating a safe work procedure for the realignment of the west anode furnace hood. 80 Nevertheless, part of the responsibility for devising a safe work method for the alignment of the hood, and, for supervising relevant personnel associated with the task of alignment must lie with the other parties, notably, AGI, Mr Irwin and D & D Services. I take this consideration into account when fixing penalty: see Inspector Yeung v Donald Wilson trading as Wilson's Tree Service (2004) NSWIRComm 346 per Boland J at [43] (currently on appeal to the Full Bench). General and specific deterrence

81 The prosecutor emphasised the significance of general deterrence in this matter. The accident occurred in an environment where heavy machinery was being used and a contractor-workforce was working at height manoeuvring a heavy piece of equipment. The fully assembled refracted hood weighed 23 tonnes at the time of installation. 82 General deterrence is relevant in this matter in order to draw attention to the occupational health and safety obligations of employers operating in large industrial undertakings, utilising heavy pieces of machinery and equipment, and, contracting a labour hire personnel to supplement its workforce because its own expertise may be lacking. 83 The significance of general deterrence in the context of occupational, health and safety obligations was dealt with by Walton J, Vice President, in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [69]-[70]: "The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at pars 72-74), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at par 72). Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at par 74). 84 In relation to specific deterrence, the defendant put forward an argument that because its operations had ceased in 2003, the weight to be attached to specific deterrence should be low. Mr Ian Peter Wilson's affidavit (at [9]) reveals that following a series of retrenchments, the last of which took place in November 2003, the defendant's operations were scaled down to a team of approximately eleven permanent personnel who have remained on site to oversee the care and maintenance plan for the facility. 85 In these circumstances, there is little utility in imposing a penalty for the purposes of specific deterrence. A remnant of the defendant's operations remains, however, (although confined to care and maintenance). Some small component of the overall penalty should therefore take account of specific deterrence: see WorkCover Authority of New South Wales v Shrader at [71]. Reasonable Foreseeability

86 The prosecutor contended that the risk to safety was reasonably foreseeable. The defendant contended that it was not. 87 In summary, the prosecutor's contention was based on the following factors: (i) the temporary lifting lugs were not built, and, did not have the capacity for, installing the fully assembled west abode furnace hood; (ii) although the defendant's management did not know that the temporary lifting lugs posed a danger, AGI and Mr Irwin knew and had given a direction to remove them which had not been complied with; (iii) given (i) and (ii) above, it was reasonably foreseeable that the lug would shear. 88 The defendant, both in oral and written submissions, presented a detailed argument in support of its submission that the risk to safety was not reasonably foreseeable. Those arguments are briefly summarised below: (i) the defendant had no notice that the rigging crew were about to undertake the task of realigning the hood; (ii) the defendant was entitled to rely on the fact that AGI fabricated the temporary lifting lugs and should have removed them; (iii) neither Mr Irwin, nor Mr Roberts, brought to the defendant's attention their concerns regarding the lifting lugs; (iv) the defendant's shutdown programme was sufficiently comprehensive, both in its organisation and implementation, and, it was entitled to rely on it. Contracting personnel, such as Mr Irwin, and AGI personnel, did not raise the issue of the temporary lifting lugs although there were a number of procedural options developed by the defendant, such as review of the JSEAs, following the risk assessment procedures in place; and, communicating concerns at any one of the various regular meetings which were open to the contractors to utilise; (v) Mr Irwin and Mr Roberts and D & D Services who, according to the defendant, had responsibilities for the supervision, instruction and provision of information to the D & D Services riggers, failed to provide these services, and, in particular, failed to instruct the rigging crew not to proceed to work until competent supervision was available; (vi) there was a very limited period of time between the installation of the hood and the realignment of the hood such that there was no actual foresight and no issue of reasonable foreseeability arises.

89 I am of the view that the risk to safety posed by the temporary lifting lugs was reasonably foreseeable. This was a dangerous enterprise being undertaken by the rigging crew. Notwithstanding the systems in place for the shutdown programme, there was no system in place for the realignment of the hood, and, there was no adequate supervision, instruction or information forthcoming from the defendant to the rigging crew as to how the task should be undertaken. Shortly before the accident, the defendant, through Mr Milevski, was the person in charge of supervising the installation of the hood. The hood was fitted with lugs which were not capable of safely lifting the weight of the fully assembled hood. These factors combined made the risk to safety (the temporary lifting lugs breaking off), to Mr Pop and the other members of the rigging crew, objectively, reasonably foreseeable. 90 Not only was the risk reasonably foreseeable, it was avoidable by simple remedial measures such as ensuring that the lugs were removed, or, devising an appropriate safe procedure for the realignment, or, ensuring that the rigging crew were adequately supervised, instructed or informed in relation to the task. 91 These two considerations, that is, the existence of a reasonably foreseeable risk to safety, and, the availability of simple remedial measures are relevant to an assessment of the objective seriousness of the offence: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (1999) 95 IR 383 at 450. 92 In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 at 63, the Full Bench held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. Gravity of the breach and potential serious consequences

93 The defendant's breach had serious consequences. Mr Pop sustained serious facial injuries, as well as other injuries. As the prevailing authorities observe, the fact of serious injuries does not, of itself, demonstrate the objective seriousness of a breach, although, the occurrence of serious injuries may manifest the degree of seriousness of the risk to safety. This sentencing principle was recently revisited in Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd (2004) NSWIRComm 337 at [17]-[18]: "17 The relevance to the gravity of an offence of injuries suffered as a result of a breach of the Occupational Health and Safety Act and the relevance of potential serious consequences or serious injuries of that breach, are well settled: see, for example, Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) at paras [94] and [95] where it was held: [94] We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. 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 consequences 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: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 188 at 131; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited at 90-91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22. [95] It must however be recognised that the principle does not lead to the proposition which, at least implicitly, was relied upon by the appellant. That is, relatively minor injuries of themselves demonstrate that the offence was not a serious one. We do not consider that is or represents a correct statement of principle or correctly portrays the situation here. We consider the relevant risk was not exemplified by the limited nature of the injuries suffered, and thus those injuries do not give an accurate insight into the seriousness of the breach of the Act. Rather, we consider that the breach of the Act, although limited to the failure to provide adequate protective clothing, was a very serious one indeed. 18 We do not consider that the proper application of the relevant principles requires the sentencing judge to expressly specify the type of injury that could have been suffered as a result of the particular breach of the legislation, although it is appropriate in most cases for there to be an indication of the kind of consequence that could have resulted from the breach. The second ground of appeal should therefore be rejected." 94 Here, the injuries sustained by Mr Pop were a manifestation of the seriousness of the risk to safety caused by the defendant's failure to have in place a safe system for the realignment procedure. The circumstances of that failure (heavy equipment with lifting lugs not designed to bear the weight of the hood, and, working at heights) indicated a potential for serious injury. This fact renders the offence a serious one: see also Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor (2005) NSWIRComm 1 at [42]-]43]. 95 Although the circumstances demonstrate that the defendant had in place at the time of the offence a comprehensive and impressive set of safety procedures, I find after taking into account all the objective criteria which I have considered, that the offence was serious.

Aggravating Factor: Prior Convictions 96 The defendant has four prior convictions, three imposed by the Court and one imposed by the Chief Industrial Magistrate's Court. 97 In Inspector Brett Jurmann v Port Kembla Copper Pty Limited [2004] NSWIRComm 150, the defendant pleaded guilty to an offence under s15(1) of the Occupational Health and Safety Act 1983 ("the 1983 Act"). The offence alleged failures to provide and maintain a safe system of work; safe plant, and, adequate information, instruction, training and supervision. The relevant facts, in brief, were that a machine used in the copper refining process to remove slimes consisting of a mixture of metals, acids and water from an electrolyte solution was, to the defendant's knowledge, emitting or spraying slimes. The machine was located in the refinery section of the defendant's premises. On 14 August 2001, a worker was sprayed with slimes and suffered corrosive burn injuries to his right eye. At the time of the accident, the machine had no adequate protective screen to ensure that workers were protected from the emissions. Following the accident, the defendant erected a perspex screen around the machine.

98 Evidence before the sentencing judge, Marks J, disclosed that extensive remedial steps had been taken following the accident and, his Honour found, the defendant, had, since about mid-July 2002, following the appointment of Mr McNamara as Occupational Health and Safety Superintendent, an extensive commitment to occupational health and safety programmes. 99 His Honour found that the breach by the defendant was a serious one, but that it was at the lower end of the relative scale of seriousness. After allowing a discount of 35 percent for personal mitigating factors, his Honour imposed a penalty of $58,000.00. 100 In Inspector Belley v Port Kembla Copper Pty Limited (2004) NSWIRComm 98, the defendant pleaded guilty to two offences relating to separate incidents under s58(1) of the Act.

101 Both offences involved burn injuries suffered by two employees working in different parts of the defendant's premises in December 2001 and March 2002, respectively.

102 Prior to the first incident, a furnace used for the conversion of copper matter in the process of copper smelting ("the MIC furnace") was malfunctioning and taken off line. A diesel burner was utilised in an attempt to fix the problem and a JSEA was prepared by the defendant for its installation in the MIC furnace. The JSEA did not identify any procedures, hazards and precautions to be taken upon removal of the diesel burner from the MIC furnace. When a worker attempted to remove the diesel burner he was engulfed by a blowback of hot gas and suffered first degree burns to his face. 103 The second incident (March 2002) also involved a diesel burner at the defendant's premises, when it was being installed inside a furnace. The employee, during the installation procedure, suffered facial burns when a blowback of hot gas and smoke exited from an aperture in the template door of the burner. At the time, the defendant had a procedure in place for the installation, but the employee had never installed a diesel burner, had never signed off as being competent with the installation procedure, and, was not directly supervised during the installation.

104 Haylen J, assessed the breaches of the Act as serious, but falling within the bottom half of the range. After taking into account various personal factors, a discount of 30 percent was awarded and a penalty of $94,500.00 was imposed for each offence. 105 Not only did these offences occur within a short time frame (August and October, 2001, and March 2002) but the present offence was committed only some five months after the March 2002 offence. All the offences, including the present offence reveal that the defendant had systems in place that were deficient. Here, the defendant had a system in place for the installation of the hood, but that system did not include a procedure for realigning the hood. 106 Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 requires that a record of previous convictions is to be taken into account in determining a sentence as an aggravating factor. The relevance of prior convictions to the sentencing process is set out in Veen v R (No. 2) (1988) 164 CLR 465 at 477-478: "... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. 107 The defendant's prior convictions indicate that the present offence is not an uncharacteristic aberration. This enhances the overall seriousness of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 477.

108 The defendant submitted that a discount of 35% of the penalty to be imposed is warranted because of the early plea, and other mitigating factors. 109 Although there was no material put before me as to whether the plea was entered at an early stage, certainly the prosecutor has not sought to contradict the assertion. I have examined the file. The Application For Order was filed on 3 March 2004 and the defendant was ordered to appear before the Court on 20 April 2004. The defendant appeared before Justice Boland on 20 April 2004 and informed the Court that having received a copy of the Brief of Evidence it was necessary to request further particulars. The matter was adjourned until 1 June 2004. On 1 June 2004, the defendant informed the Court that replies to its request for particulars had just been received and it sought some time in which to obtain instructions in relation to the replies. The matter was adjourned until 30 June 2004. On 30 June 2004, the defendant appeared again before Boland J and informed the Court that its business operations had closed down and it had encountered some difficulties while undertaking its investigations into the charge. It was therefore in no position to enter a plea at that time. The defendant formally entered a plea of guilty to the charge on 28 July 2004. 110 On the basis of these facts I am prepared to accept that the plea of guilty was entered at an early stage. This entitles the defendant to a discount which recognises the utilitarian value of the plea. In accordance with R v Thompson; R v Houlton 49 NSWLR 383; 115 A. Crim. R. 104, there is no requirement to quantify the discount, although sentencing judges are encouraged to do so (at [113]); and, the appropriate range for such a discount is from 10-25 percent (at [152]). 111 The desirability of specifying the quantum of discount for utilitarian considerations was again emphasised in R v Shenton (2003) NSWCCA 346, 17 November 2003 at [5], [11] and [12]. 112 I consider that in the circumstances here, an appropriate discount for the utilitarian value of the plea is 25 percent.

Post-accident remedial measures. 113 The affidavit of Mr McNamara details a number of post-accident measures designed to improve its safety system. These measures included revision of the alignment procedure which involved rendering the temporary lifting lugs unusable, and, amendment of the hood design drawings. In addition, the defendant investigated the accident and produced a report. It maintained regular contact with Mr Pop's contractor to check on Mr Pop's state of health. It also conducted an audit of the 2002 shutdown programme. The defendant also constantly reviewed and updated its safety programmes.

Other personal factors 114 The prosecutor has conceded that the defendant co-operated with the authorities in relation to the circumstances of the accident. The defendant has shown concern for the welfare of Mr Pop. There is also an element of contrition evidenced by the plea of guilty. These are all matters personal to the defendant which I take into account in its favour including the actions of the defendant in implementing safety measures following the accident, and, in addition to the discount foreshadowed in these sentencing reasons for the early plea of guilty. 115 In determining penalty, I have had regard to the objective seriousness of the offence, the aggravating factor of prior convictions and the subjective factors referred to above. I have also taken into account the principle of contribution. I consider the appropriate penalty, taking all those matters into account, to be a fine of $160,000.00. ORDERS

(2) The defendant is fined the sum of $160,000.00 with a moiety to the prosecutor;

(3) The defendant is to pay the costs of the prosecutor, as agreed or, in default, as assessed.

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