Inspector Stephen Gill v J D Thompson Personnel Pty Limited; Inspector Stephen Gill v Visy Paper Pty Limited

Inspector Stephen Gill v J D Thompson Personnel Pty Limited; Inspector Stephen Gill v Visy Paper Pty Limited - [2005] NSWIRComm 73 - NSWIRComm 2004 case summary — Zoe

[13]

1 JD Thompson Personnel Pty Ltd, trading as Jobwire, the first defendant, is a labour hire company who employed Hermingildo Bohol ("Mr Bohol") as a casual labourer commencing from on or about 23 May, 2002. Upon commencement of his employment, Mr Bohol was inducted into the first defendant's policies and procedures, including its occupational health and safety procedures. 2 Visy Paper Pty Limited, the second defendant, conducted a recycling business. Its activities included the recycling of waste paper and cardboard from its premises at the corner of Baker and Moore Streets, East Botany ("the premises"). 3 The two defendants entered into a verbal arrangement for the hire of trade labour personnel employed by the first defendant to work at the second defendant's premises. Before an employee of the first defendant commenced work for the second defendant, both defendants ensured that those employees were inducted into the second defendant's general operations. 4 On 23 May, 2002 Mr Bohol attended an induction at the second defendant's premises situated at Blacktown. This induction was conducted by representatives of both defendants, and included an induction into the second defendant's general occupational health and safety policies and procedures. 5 On 12 June, 2002, Mr Bohol commenced at the second defendant's premises, performing paper and recycling work. 6 This work took place at the recycling shed. Inside the recycling shed were two rooms where sorting of paper and cardboard recyclable material occurred. Each room was approximately 9 metres in length, 5 metres in width and approximately 2.5 metres in height. Each room was situated approximately 3.4 to 4 metres above ground level. Access to both rooms was provided by a sixteen steps staircase which led to a landing. An elevated walkway connected the two rooms. The sorting rooms were referred to as "Picking Station Number 1" and "Picking Station Number 2". Mr Bohol was assigned to picking station number 2 ("the sorting room"). 7 The sorting room contained a raised conveyor belt located in the centre, which ran the entire length of the room ("the sorting room conveyor"). This conveyor was approximately 1.75 metres wide, was fitted with metallic green sides and made of black rubber. Rubber mats were located on the floor of the sorting room adjacent to the sorting room conveyor. The areas where the rubber mats were located were known as "picking stations". There were a total of six such stations within the sorting room. In addition, the sorting room had seven metal chutes. Six of the chutes were situated in front of each of the six picking stations and were adjacent to the sorting room conveyor ("the picking station chutes"). The seventh chute was fed by the sorting room conveyor. All seven chutes led down through the sorting room to three separate conveyors which were located approximately 3.4 metres below the sorting room ("the chute conveyors"). Each of the six picking station chutes measured approximately 800mm by 1000mm and extended above the floor of the sorting room approximately 900mm. The part of the chute above ground level was also known as a "bin". All of the chute conveyors led to another conveyor ("the main conveyor") which, in turn, led to a recycling baler. Each of the chute conveyors were perpendicular to the main conveyor and were separated from it by access panels measuring approximately two metres in height and one metre in width ("the access panels"). 8 Inside the sorting room were also two sets of controls for the sorting room conveyor. Both sets of controls consisted of a green push "start" button and a red "stop" button. Another control panel with similar controls for the chute conveyors which fed two picking stations at the northern end of the sorting room, two picking stations at the northern end of the sorting room, and, the working room conveyor, were located outside the sorting room on the exterior western wall. 9 A further control panel was located directly outside the north-west door of the sorting room which had controls for the sorting room conveyor, the chute conveyors and the main conveyor ("the main control panel"). The main control panel also had controls which opened the access panels. 10 The usual practice for performing the work in the sorting room required workers to stand at a picking station and sort the paper from the cardboard as it moved along the conveyor. Cardboard and certain types of paper were then placed in a chute so that they fell into the chute conveyor below. 11 The prevailing procedure for clearing blockages in a chute consisted of stopping the sorting room conveyor and then clearing the blockage by operating the relevant chute conveyor in a forward and backward motion to dislodge the blockage. 12 In conjunction with the prevailing procedure, or, as an alternative, a worker could use a long pole or stick to push the cardboard further down the chute with the aim of dislodging the blockage. 13 If neither procedure was successful and the blockage remained, then all relevant conveyors were stopped, the main conveyor isolated and tagged, and, the relevant access panel was opened to clear the blockage from beneath the sorting room. 14 On 12 June 2002, Mr Bohol commenced work at the second defendant's premises at 10.00am. He was advised of the relevant work procedures by his leading hand and supervisor for the day, Mr Alexander Gjorgjevski. Mr Gjorgjevski issued Mr Bohol with safety equipment and advised him that if something became blocked in the conveyors or if he had any other problems with his work, he should inform Mr Gjorgjevski. 15 Three other workers, including Mr Bohol's wife, were also working in the sorting room on 12 June 2002. Two were employees of the first defendant, and, the third employee was a long serving employee of the second defendant. 16 At approximately 1.40pm, one of the picking station chutes became blocked ("the blocked chute"). 17 Despite the procedures in place for unblocking blockages, on occasion, some workers used their feet or legs to push on cardboard obstructions in the chutes. Mr Bohol attempted to clear the blocked chute by climbing on top of the pile of cardboard which had become blocked in the chute and pushing down on the blockage with both feet. At that time, one of the chute conveyors (number 10) and the main conveyor were in operation. The blockage suddenly cleared and Mr Bohol fell approximately 3.4 metres down the picking station chute landing on chute conveyor number 10 below. He hit his head on the metal sides of the chute as he fell. He attempted to stand, but stumbled and injured his arm and a finger. 18 Mr Gjorgjevski, who was alerted that an incident had occurred, stopped the main conveyor and production and went to assist Mr Bohol who was already being assisted by fellow workers. Mr Gjorgjevski applied a bandage to Mr Bohol's ankle and arranged for an ambulance to be called. 19 As a result of the incident, Mr Bohol sustained a comminuted fracture to his left ankle. The Charges

[15]

21 The charge against the first defendant alleges an offence against s8(1) of the Occupational Health & Safety Act 2000 ("the Act") of failing to ensure the health and safety at work of its employees, including Mr Bohol. The failure is said to arise from the circumstances outlined above which led to Mr Bohol's injury sustained at work on 12 June 2002 at the second defendant's premises, when he fell down a chute and landed on a moving conveyor situated approximately 3.4 metres below having attempted, immediately beforehand, to clear a blockage (cardboard) from the chute. 22 The charge is further particularised in the amended application for order as follows: "The defendant failed to ensure that the system of work conducted at the work site involving the sorting of paper and cardboard for recycling was safe and without risks to health in that: (a) the injured worker was able to climb into the chute and attempt to free the obstruction by using his feet to push against the cardboard; (b) there was no risk assessment for this particular task carried out by the defendant; (c) there was no documented safety procedure in place for the task of sorting cardboard and paper for recycling; (d) the defendant did not undertake appropriate audits of the nature of the work being conducted by the worker at all times. As a result of the defendant's failure, Hermingildo Bohol was placed at risk and suffered a comminuted fracture to the left ankle. The defendant conducted its business of the hire of the services of trade labour personnel from its premises at 219-227 Elizabeth Street, Sydney in the state of New South Wales ("the premises"). The defendant was at all material times on 12 June 2002 an employer. Prior to 12 June 2002, the defendant entered into a casual arrangement with the host employer for the hire of the services of trade labour personnel to the host employer. On 12 June 2002, pursuant to the casual agreement between the defendant and the host employer, the worker commenced work at the host employer's premises. The worker was hired to perform paper and cardboard sorting and recycling work the host employer's premises. As a result of the accident, the injured worker (suffered) a comminuted fracture to the left ankle and as of 6 February 2003, was not able to return to work.

[16]

23 The charge against the second defendant alleges an offence under s8(2) of the Act. The second defendant's undertaking is described as, "the sorting and recycling of waste paper and cardboard". The factual circumstances which led to Mr Bohol's injury on 12 June 2002 are set out in the amended application for order in identical terms to those set out in the first defendant's amended application for order. 24 The charge is further particularised in the second defendant's amended application for order in the following terms: "The defendant failed to ensure that the system of work conducted at the work site involving the sorting of paper and cardboard for recycling was safe and without risk to health in that: (a) the injured worker was able to climb into the chute and attempt to free the obstruction by using his feet to push against the cardboard; (b) there was no risk assessment for this particular task; (c) there was no documented safety procedure in place for this task." As a result of the defendant's failure, Hermingildo Bohol was placed at risk and suffered a comminuted fracture to the left ankle. The defendant conducted its business of the recycling of paper and cardboard from its premises at the corner of Baker and Moore Streets, East Botany in the State of New South Wales ("the premises"). The defendant was at all material times on 12 June 2002 an employer. Prior to 12 June 2002, JD Thompson Personnel Pty Ltd trading as Jobwire entered into a casual arrangement with the defendant for the hire of the services of trade labour personnel to the defendant. On 12 June 2002, pursuant to the casual agreement between the defendant and JD Thompson Personnel Pty Ltd trading as Jobwire, the worker commenced work at the defendant's premises. The worker was hired to perform paper and cardboard sorting and recycling work at the host defendant's premises. As a result of the accident, the injured worker (suffered) a comminuted fracture to the left ankle and as of 6 February 2003, was not able to return to work." The prosecutor's evidence against the first defendant

[19]

29 An affidavit of Fadia Boumelhem ("Ms Boumelhem") sworn on 25 November 2004 was read into evidence with the exception of paragraph 49, by the first defendant's legal representative, Mr Fredericks. The first defendant also tendered into evidence a bundle of documents which included a video of an induction which was shown to employees of the first defendant at around the time of the incident and which featured those employees at the second defendant's premises using long sticks to push material down chutes. It also showed inductees being advised to be aware of moving parts and equipment; to be aware of the location of emergency stops; to wear personal protective equipment; and, advice on how to use the accident and incident reporting system. 30 Also tendered into evidence by the first defendant was a WorkCover Accident Report form which was completed and signed by the first defendant on 13 June 2002. This form contains details of the incident involving Mr Bohol on 12 June 2002 as recorded by the first defendant. The date stamp shows receipt of this form by WorkCover at its Lindfield office on a date which is partially obscured, but appears to read "20 June 2002". A second date stamp shows receipt by the WorkCover Retail, Wholesale, Transport and Storage team on 27 June 2002. 31 Ms Boumelhem's affidavit contains information about the placement process of the first defendant's employees in force at and prior to the incident involving Mr Bohol. It also contains information about the size and scale of the first defendant's operations at the time of the accident, and, the induction training and safety measures it had in place at and prior to the incident. 32 Specifically, the affidavit discloses that at the time of the incident the first defendant had three branches supplying labour hire services across Australia with one branch in New South Wales. The first defendant employed approximately thirty three permanent employees nationwide and had approximately 4,977 registered candidates who were available for allocation as labour to its clients. All registered candidates were required to complete induction training, and, candidates assigned to work with a particular client were also required to complete induction training at the particular site to which they were sent to work. 33 Material in the tender bundle includes a copy of the documentation supporting Mr Bohol's registration and his resume, and shows that his first job for the first defendant was on 2 June 2002. The material also includes the first defendant's "General and OHS Induction Program" which was in place at the time of Mr Bohol's induction into the first defendant's operations. In addition, the first defendant's "General and Occupational Health and Safety On-Hire Employee Handbook" forms part of the tender bundle. A copy of this handbook was provided to Mr Bohol, and, the contents explained to him during his induction. The contents include the results of an occupational health and safety test completed by Mr Bohol following his induction training (date 23 May 2002) and a "sign off" sheet (also signed by Mr Bohol on 23 May 2002) which indicates that he viewed a video which formed part of the induction programme. The second defendant's evidence

[20]

34 Mr Fernon SC, counsel for the second defendant, read into evidence without objection an affidavit of Ian Spencer ("Mr Spencer") sworn 8 December 2004. Documentation exhibited to the affidavit was tendered into evidence without objection. 35 At the time of swearing the affidavit, Mr Spencer was the New South Wales Operations Manager for the second defendant. 36 Mr Spencer, in his affidavit, explained that the second defendant is comprised of a number of business units which are organised within two key divisions, namely, paper milling ("Visy Paper") and collecting and recycling materials ("Visy Recycling"). Both divisions are discrete and employees of one division do not transfer to the other division. If an employee wishes to work for a different division, he or she must apply for the position as if he or she were a new employee. 37 Mr Spencer also outlined in his affidavit the second defendant's induction programme for labour hire workers, including workers whose services are hired from the first defendant. According to Mr Spencer, the induction process consists of three stages. The first stage is an induction by the employer of the labour hire workers; the second stage is an induction into the second defendant's recycling policies and procedures conducted at a Visy Recycling site; the third stage is a site specific induction at the Visy Recycling site. 38 Mr Bohol, according to Mr Spencer, undertook the three stage induction process prior to the accident. The second stage which was conducted at the second defendant's Blacktown site consisted of watching two videos, the second of which addressed various safety matters such as lockout/tag procedures, personal protective equipment, and, the need to speak to a supervisor if unclear about policies and procedures. Following the viewing of the videos, workers were taken through the "Visy Induction Manual" and invited to ask questions about the policies and procedures outlined to them during the induction. In relation to the third stage, Mr Bohol, received a site specific induction on 12 June, 2002, his first day of work at the second defendant's premises, and the day of the accident. The site specific induction was conducted by Mr Gjorgjevski and consisted of a site tour, and, the requirement to complete a questionnaire regarding the policies and procedures discussed during the induction programme. In addition, all personnel commencing work with the second defendant received a copy of the Visy Induction Manual which they were taken through and then requested to sign as an acknowledgement that they had received and understood the policies and procedures. Before commencing work all workers were provided with personal protective equipment. The Prosecutor's Submissions.

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39 The prosecutor relied on a number of objective criteria to develop the submission that the offences before the Court were serious. 40 General and specific deterrence were said to apply here to both defendants because the work in which the injured worker was engaged involved the use of large size plant and equipment with moving parts, and, working at height. In relation to the first defendant, it was engaged in the supply of labour to many disparate work sites, industries and occupations. In relation to the second defendant it employed the services of casual workers supplied by a labour hire company which involved the likelihood of work being performed by persons otherwise unfamiliar with the worksite, the nature of the work and the risks associated with that work. 41 The prosecutor also emphasised, in the context of workplaces where large plant and equipment with moving parts are in use, and, where work is performed at height, that employers including those that supply labour to such workplaces have a positive obligation under the Act of informing themselves of the circumstances of safe working. 42 The prosecutor also relied on the sentencing principle, namely, that a serious risk to safety is a measure of the seriousness of the breach as a further indication of the objective seriousness of the offence, since, although Mr Bohol suffered a broken ankle as a result of the incident the facts giving rise to the injury disclosed the risk of a much more serious injury. 43 The prosecutor contended that the risk to safety was both obvious and reasonably foreseeable. In support of this submission several pieces of evidence were set out by Ms Lowson in written submissions. 44 Also significant, according to the prosecutor, was the fact that despite the official procedure in place for clearing blockages Mr Bohol was performing an alternative procedure using his feet to clean the blockage. The existence of this practice suggested that his actions were not extraordinary, but, in any event an employer's duty under the Act to provide a risk free environment, in the context of a determination as to whether the risk to safety is reasonably foreseeable, was owed to careless, inattentive even disobedient employees as well as to the careful and observant employee. 45 In relation to the relative culpability of each defendant the prosecutor submitted that the culpability of each was "similar", but because the second defendant had prior convictions it was appropriate that it receive a higher penalty than the first defendant. 46 The prosecutor also submitted that the penalty to be imposed against both defendants showed be mitigated because of the pleas of guilty but, in relation to the application of any leniency in this regard, that this should be assessed by reference to the circumstances which show that those pleas were entered in the face of strong prosecution cases, the extent of any leniency therefore, may have much less weight. 47 Other factors, personal to both defendants which the prosecutor said the Court may take into account by way of mitigation, included the system of inducting workers, although this was rendered less valuable when no risk assessment, as here, was performed. Other relevant features were the post-accident remedial measures undertaken by both defendants; the co-operation by both defendants with WorkCover; and, in relation to the first defendant, the absence of prior convictions. First Defendant's Submissions

[22]

48 The first defendant in its submissions acknowledged that, as a labour hire company it had a special responsibility under the occupational health and safety legislation to ensure the health, safety and welfare of its workers who were often sent to unfamiliar workplaces, and who, were not under the direct control or supervision of the principal employer. 49 The first defendant relied on its system in force prior to the accident which included inspections of and risk assessments in foreign workplaces, and inductions prior to employees commencing work in those workplaces. These circumstances, the first defendant said, indicated that it had turned its hand to issues of safety, and, had taken positive steps to address them. This was not a situation where a labour hire company had delegated its responsibilities in relation to safety to the employer at whose workplace its workers were sent. 50 The first defendant also submitted that it had an excellent occupational health and safety record. It had a large workforce, and had been conducting operations in the labour hire industry since 2000 without incurring any prior convictions or improvement or prohibition notices from WorkCover. 51 While acknowledging its guilt in relation to the offence the first defendant contended that its failure was essentially in not identifying the risk that an employee would climb into a hole and jump on a blockage rather than use the established procedures for the removal of the blockage. 52 In relation to the principle of general deterrence while recognising its application to the present circumstances, the first defendant relied on the important consideration that in setting a penalty at a level that will operate as a deterrent, the penalty should not be so high as to be oppressive. 53 In relation to specific deterrence the first defendant submitted that the Court can be satisfied on the material before it that the first defendant is aware of its safety obligations and is continually striving to improve its safety systems. 54 The first defendant contended that the maximum discount should be applied on sentence having regard to the following matters:- (i) the size and nature of its operations; (ii) the fact that it took steps to minimise the re-occurrence of this type of accident; (iii) the fact that it did not ignore its obligations or responsibilities with regard to the management of risks at foreign worksites (iv) its strong commitment to occupational health and safety issues, and its exemplary safety record; (v) its contrition evidenced by the plea which was entered at the earliest opportunity; and, by the fact that a number of its senior personnel have attended court during the sentencing hearing; (vi) its co-operation with WorkCover. 55 In relation to its capacity to pay a fine the first defendant contended that while it is a successful company, it is not a major public corporation with extensive capital and resources. 56 It was further contended that because the prosecutions against both defendants arose from common factual circumstances, that the Court "...is likely to apply the parity principle as if Jobwise and Visy were co-defendants". Second Defendant's Submissions

[23]

57 Mr Fernon SC, developed a submission on behalf of the second defendant, concerning its prior convictions which were based on offences committed in the paper division of the second defendant's operations. This paper division operated as a separate entity from the recycling division in which the present offence was committed. The separate nature of the two divisions is confirmed by the fact that employees of one division may only transfer to the other division upon making an application as if the employee were applying for a position as a new employee. Each division also has its own separate management and its own reporting requirements. In addition each division uses different tools and relates to a different market. 58 Mr Fernon then submitted, on behalf of the second defendant:- "So that whilst as a matter of legal reality the defendant is the defendant and the defendant has a number of prior convictions, as a matter of practical operation the division operates separately but for a concession to an industrial concern the recycling business would operate as a separate entity and would not be divided, if that be the correct word, by the prior conviction". 59 The second defendant also drew to the Court's attention a further prior conviction dated 19 November, 2004 in the Chief Industrial Magistrates Court. According to Mr Spencer's affidavit, this conviction, which occurred in the recycling division, concerned a worker getting his fingers caught in the chain and sprocket of a machine which operated a conveyor. 60 The second defendant relied on this recent prior conviction to focus attention on its commitment to safe work practices. The recycling operation has been ongoing since 1979 with a number of employees engaged to work in it. 61 The second defendant also relied on its three stage induction process in force at the time of the offence to show its commitment to safety. 62 It was submitted on behalf of the second defendant that the offence was not serious because there was an induction process which was developed and implemented. Also, the injured worker was advised of the procedure (when there was a blockage) before commencing work; and, told that if he had a problem he was to advise the leading hand. 63 Although the risk to safety was reasonably foreseeable, the second defendant submitted that it was relevant to this aspect that the risk arose in the context of a worker who was reckless or inadvertent. 64 The second defendant also sought to rely on its introduction of a number of post-accident measures, including a thorough risk assessment which identified hazards and appropriate action to be taken in relation to each of those hazards, and, the formulation of a written procedure for the clearing of blockages. 65 Mr Fernon informed the Court that the second defendant regards the incident as serious, and, it takes workplace safety seriously, as the improvements to safety undertaken since the incident testify. Further, that the incident was deeply regretted by the second defendant. Members from the second defendant's senior management were in attendance at Court in order to demonstrate how seriously the incident has been taken, and, how serious is its commitment to safety. 66 The second defendant also relied on the fact that it had entered an early plea of guilty and cooperated with WorkCover, both matters which it said went to mitigation of the penalty and which should result in the application of a "maximum discount". Consideration

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67 The first defendant faces a maximum penalty of $550,000.00. The second defendant by virtue of its prior convictions faces a maximum penalty of $825,000.00. 68 The second defendant submitted that the Court should treat its record of prior convictions as if two of its prior convictions had occurred in the paper division and therefore should not be taken into account as prior convictions of the second defendant since that division was an entirely separate entity (although not legally separate) from the recycling division where the present offence occurred. 69 The third and most recent prior conviction is in a different category, since the offence, the subject of that conviction was committed in the recycling division, like the present offence. 70 I do not agree that the two prior convictions, which relate to events that took place in the paper division, should not be taken into account in these proceedings. Both divisions, however separately they may operate in practice, are part of the one legal entity, namely, the second defendant, and employees working in the paper and recycling divisions are employed by that entity. An analogy between different corporate divisions of a company and government departments was utilised by Hungerford J in WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in Right of the State of New South Wales (Department of Community Services) 96 IR 1, in order to show that because the Crown is the employer of persons employed in various government departments, it thereby retains overall responsibility and liability for the acts or omissions of those through whom it performs its functions. This includes being liable for the prior convictions of the particular department in which an offence has been committed, and, departments generally. His Honour went on to say (at 22): "In the same way, and by direct analogy, an employer in private industry incorporated as a particular legal person may administratively so organise the performance of its functions so as to be done through departments or divisions of the corporate entity; but it is the corporate entity itself which is the employer and hence the legal person responsible for the conduct of the whole of its operations. For instance, I do not think it could be said that where a private corporation is, say, engaged in manufacturing at five plants throughout the State that if it had prior convictions at two of those plants that that would not be relevant where it was convicted of an offence for the first time at another of its plants. And so, it seems to me, it must be for the Crown as an employer even though performing its very many functions of government through a departmental structure."

[26]

72 The parties in these proceedings have recognised the application of general deterrence to both offences. The second defendant's industry involved the use of large plant and equipment with moving parts operating at height. Such circumstances indicate a potentially hazardous workplace environment. 73 The first defendant is a labour hire company. In submissions, it acknowledged its, "special responsibilities" in relation to occupational, health and safety issues. This "special responsibility" arises because a labour hire company's workforce is invariably sent to workplaces over which the employer has no direct management or direct control, and, where those workplaces are unfamiliar to the workers: see WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Limited trading as Drake Industrial (No.1) (1997) 89 IR 374 at 382 per Hungerford J; WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd No2) (2001) 110 IR 447 at 464, 465. 74 In Drake Personnel Limited trading as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 455 the Full Court distinguished the relationship between a labour hire company and its employees; and, the relationship between traditional employers and their employees in the following way:- "A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s 15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees". Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s 15(1)". 75 Mr Bohol was employed by the first defendant as a casual labourer. The offence date was his first day of work at the second defendant's workplace. 76 These factors taken together require that a greater emphasis be given to general deterrence, and, they exacerbate the seriousness of the offences against both defendants: WorkCover Authority of New South Wales (Inspector Barbosa) v McDonald's Australia Limited (2003) 125 IR 270, at 302 per Walton J, Vice-President. 77 Specific deterrence is also relevant as against both defendants. Here, factors such as post-accident measures taken by a defendant to improve safety, and, whether a defendant shows a propensity to re-offend are significant. In relation to this last mentioned aspect, an employer's adoption of a proactive approach to safety is important particularly where a defendant conducts a large enterprise which involves inherent risks to safety: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 99 IR 29, at 61. 78 Despite efforts being made by both defendants to continually improve safety in the workplace following the offences with which both have been charged, each defendant conducts a sizable enterprise with every sign of continuing operations in the paper, and recycling business in relation to the second defendant, and, in the labour hire business in relation to the first defendant. Specific deterrence therefore remains of significance for both defendants.

[27]

Gravity of the breach and potential serious consequences 79 Another factor which affects the seriousness of the breach here is the potentially serious consequences which flowed from that breach. Mr Bohol suffered injuries as a consequence of falling some 3.4 metres on a moving conveyor belt. Although the extent of his injuries appeared to be a comminuted fracture of his left ankle, his injuries, given the circumstances immediately preceding the fall, may well have been more serious. 80 This sentencing principle was recently revisited in Maddaford v CSR Limited and Mulgoa Quarries Pty Limited (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."

[28]

Reasonably foreseeable risk to safety. 81 A further objective feature which falls to be assessed in these proceedings is whether the risk to safety was reasonably foreseeable. Here the failures of both defendants to ensure a safe system of work have been particularised in the documents of agreed facts applicable to each defendant respectively as follows:- a) the injured worker was able to climb into the chute and attempt to free the obstruction by using his feet to push against the cardboard; b) there was no risk assessment for this particular task carried out by the defendants; c) there was no documented safety procedure in place for the task of sorting cardboard and paper for recycling; d) the defendants did not undertake appropriate audits of the nature of the work being conducted by the worker at all times. 82 According to the material set out in the agreed statements of facts, and despite the procedures in place for clearing obstructions in the chutes, "on occasion", the workers used their feet or legs to push an the obstructions. In such circumstances the risk was that a worker could fall a considerable distance and sustain serious injuries. 83 In circumstances where: (i) the sorting room chute was some 3.4 metres above the conveyor; (ii) the chute was wide enough for a person to fall through; (iii) blockages were not an uncommon occurrence; (iv) if a risk assessment had been performed then the unsafe work practice employed "on occasion" for the cleaning of blockages, namely, climbing into the chute and using hands and feet would no doubt have been exposed; no other conclusion is available other than that the risk was reasonably foreseeable. 84 The existence of a reasonably foreseeable risk to safety renders the offence objectively serious. The fact that Mr Bohol's actions may be described as careless, for example, does not affect this assessment : WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 at 216 per Walton J, Vice-President. Safety systems in place at the time of offences.

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88 In relation to the respective culpabilities of each defendant, the prosecutor submitted that the culpability of each defendant was "similar", but that a higher penalty for the second defendant was appropriate because it had a history of prior convictions and faced a higher statutory maximum penalty. 89 Both defendants failed to ensure a safe system of work in the context of the sorting of paper and cardboard recyclable material at the second defendant's premises. Neither defendant conducted a risk assessment of the specific task involving the sorting of recyclable paper and cardboard (that is, the task being performed by Mr Bohol at the time of the accident). Neither defendant undertook an appropriate audit of the type of work being conducted by Mr Bohol, and, neither defendant had in place a documented safety procedure for the work. These similarities render the culpabilities of both defendants broadly equal. The second defendant, however, has prior convictions for occupational health and safety offences which may mean that its overall culpability is higher. 90 Section 21A (2) (d) of the Crimes (Sentencing Procedure) Act 1999 requires that a record of previous convictions is to be taken into account as an aggravating factor in determining a sentence. 91 The significance of prior convictions in the sentencing process has been explained 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 . [1970] AC 642, at 650. 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. 92 The existence of prior convictions against the occupational health and safety legislation, means, in relation to the second defendant, that the present offence is not an uncharacteristic aberration, and therefore, that its culpability, all other things being equal, is greater than the first defendant's culpability. Its most recent conviction on 19 November, 2004 in the Chief Industrial Magistrates Court was the result of failures arising in the recycling division where the present offences took place. 93 Although the second defendant's record of prior convictions means that its present offence is not an uncharacteristic aberration, I bear in mind the caution given in Veen v R (No. 2) that a criminal history should not be accorded a weight disproportionate to the gravity of the instant offence, such that it would effectively impose a fresh penalty for the prior offences. The Early Pleas of Guilty

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