Inspector Stothard v Allied Industrial Services Pty Ltd

Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying, at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 10In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed, at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." 11Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

Consideration 12In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464, ad idem with the view expressed in Markarian, (at 474): ... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 13The Allied crew of three were cleaning out sludge and sediment from within tanks on the Bluescope steelworks site using a high pressure water jetting system. The equipment and system used by the defendant's work crew involved one of the crew members manually operating a water jetting lance. It was difficult to remove the caked sludge so the crew discussed the problem and decided to change the high pressure water jetting lance and the pin jet nozzle tip. A different type of nozzle tip was chosen as it produced a greater water flow; namely, a straight ridged lance and a different two millimetre nozzle tip. It was obtained from the defendant's store. The new equipment was then used by the work crew. Mr Kolomaka was manually operating the water jetting lance but the crew decided, because of the uneven ground, that another would be responsible for operating the foot control valve. At about 10.45 am on 22 May 2008, the deceased lost control of the lance that he was operating and was struck by a stream of high pressure water. Both of the other crew members observed the lance fly back towards them and one quickly released the foot control valve. Mr Kolomaka died from the injuries he received when struck. 14The defendant pleads guilty but contends the objective seriousness of the offence should be assessed taking into account: its early plea of guilty; that the operators were experienced and aware of the need to calculate reaction forces when performing the task of water jetting; the work was regularly performed by the operators; they were specifically trained and skilled for high pressure water jetting; there were supervisors on site. Further, the defendant asks for consideration given there was a request made by the crew, in the performance of the task, for a safer alternative way to break up the sludge but permission was not granted by Bluescope because of the authorising person's unavailability. Relevance is also placed on the fact there were mechanical controls available (for example, a 'Brokk') for use, which could have remotely operated the jetting device. 15The defendant concedes it was the reaction force of water pressure through the hose and lance that caused the risk but contends that pressure could have been instantly cut off had the foot control been operated by the deceased as the system in place required. It accepts, because the ground was uneven, the decision to have a different member of the crew operate it had been made by the crew for safety reasons. 16The submissions of the defendant must be given consideration in the context of the section of the Act under which it is charged. The allegation is the defendant failed to ensure the health and safety of its employees, particularly Mr Kolomaka, by failing to provide a safe system of work. The defendant in effect contends there were a number of known, alternative methods available to its crew, different from the method chosen, which, if adopted, would have made the performance of the task safe. 17However, the Act requires an employer ensures a safe system of work. This requires the employer to ensure the conduct of the task at hand is performed under its safe working method. Under s 8(1) of the Act, the working environment of an employee must be safe. There was a failure by the defendant to ensure its employees measured reaction forces once another high pressure water jetting lance was procured. Further, it was imperative that if water pressure built, the release by foot control was instant. It follows, once an election was made to alter the defined safe work method with the use of a new lance and another crew member operating the release, there should have been made available the appropriate safety precautions and protective equipment for the employees. There was always placed on the defendant the obligation to ensure employees who operated the hand lance (or any other device) had direct control of the water flow and tested the water pressure for force. The system of work chosen on the relevant day was not safe. Employees were placed at risk. 18I accept, from a reading of the available documentation, there were a number of alternative systems which could have been selected for the performance of this task when the difficulty was identified. The incident occurred because the system chosen was varied (a new lance was chosen) and the variation was not risk assessed on site. The system was also varied when the crew split the control of the foot release from the hose operator. The water pressure became an issue with the change of nozzle and while there were charts available, to guide as to the change of nozzle jetting pressure, they were not consulted. Given the choices made, there was a failure to calculate reaction force; a failure to provide protective clothing; a failure to ensure the operator had direct control of the water flow. These were failures by the defendant corporation which could have, if implemented, ensured the work could be safely performed. Each failure contributed to the breach. While there was a failure to choose a mechanical control for the performance of the task (and the evidence is there was a suitable mechanical device on site), once the choice was made to change the lance the failure to choose a mechanical control did not contribute to the incident. I accept the submission of the defendant in this regard. The defendant has pleaded guilty to a particular that it failed to ensure the choice was made for the use of the mechanical control. However, once a different choice was made this pleaded failure did not contribute to the risk. I dismiss the first particular but find otherwise the breach established. It was a serious breach but there is some consideration given where, in the circumstances, there were a number of planned safe systems in place which, if the defined work methods were strictly complied with, would have allowed the task to be performed safely. 19The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. It was well known to the employer that the reaction force of the water in a hose was a basic consideration when the form of water jetting was determined. Controls were there but were, in the circumstances, ineffective. I accept there was a foreseeable element to the offence which makes it an even more serious offence. 20VES purchased Allied, the defendant company, in July 2008. However, employees were not transferred to VES until effectively April 2009. The defendant corporation is still on the company records but no longer has employees, nor does it conduct any business. VES now conducts the Allied contracts with Bluescope, providing high pressure water jetting, vacuum loading, plant hire, labour for general cleaning and gardening services at the steelworks at Port Kembla. 21Documents collated by Mr Nicholas relating to the safety systems operating at the Allied site prior to the incident have been tendered, as well as the VES review of ex Allied sites to now ensure: 25. ... this range of corrective actions in respect of the ex Allied sites is to the following effect: (a) There is now a great emphasis in planning work and adopting the use of mechanical control devises rather than manual operations. As a consequence there is much less manual hire pressure water jetting being undertaken and where it is rigid lances are not used and the operator must have control of the primary stopping device (via a trigger on a gun). (b) Where manual operations are established as being necessary both supervisors planning the job and operators are: (i)Fully aware of the risks associated with reaction forces and the need to accurately assess those reaction forces for each task; and (ii)Required to wear PPE (including various forms of Kevlar armour) above that specified in the relevant Australian standard as appropriate to the task being undertaken. 22The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical. 23The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant ( Lawrenson Diecasting (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any employee being required to manually handle the lance without having that employee have instant control of the water pressure and without any consideration being given to the reactive force of the water once a different nozzle was chosen. 24The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. In Capral , the Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388): the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 25The defendant contends no element of specific deterrence need be included in penalty as the defendant company, Allied, no longer operates. Evidence satisfies Allied is now a wholly owned subsidiary of VES, although it stays on the record. The employees were held by the defendant corporation for a period of time after the offence. In dealing with the issue of specific deterrence, the Court in Capral noted, at [76]: ... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ... and further: The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. and at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. However, in balancing the facts here, I do not include in penalty an element of specific deterrence. 26As to general deterrence, VES has fully analysed the incident. It has retrained all high pressure jetting operators; revised all jetting procedures through risk assessment; re-skilled all operators at the worksite; ensures that for water jetting tasks a mechanical control device is preferred rather than a device requiring manual operation. What the circumstance reveals, however, is that when problems are met on site in the performance of a task, as happens daily in our industrial climate, and defined safe work methods are altered to meet that problem, those variations must then be risk assessed, in the context of the chosen safe work method, to ensure the safe performance of the task. Here, while there were safe work methods available, the necessary alterations that were made to one of those work methods on site were not risk assessed, although the risk associated with increased water pressure was a known risk - as was the necessity for the release control mechanism to be instantaneous. 27I accept VES has a focus on safety and strives to be a leader in its field. However, there will be a small element of general deterrence to penalty as the Court once more reiterates that any variation made on site to safe work methods in place, must then be measured against recognised safety standards. In today's industrial climate, especially in the operation of heavy industry, it is indisputable that on site difficulties with the performance of particular tasks will sometimes arise. However, once it is recognised a variation is to be made to a safe work method, the variation must again be risk assessed in the context of a revised work method. Supervisors on site, who carry the burden of ensuring the task at hand is properly performed, also carry the extra burden, on behalf of their employer, to ensure that any variation made to an existing work method is itself risk assessed in the context of the safe performance of the job at hand. A failure to supervise, however, is not a pleaded element of the breach. 28It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131 ; (2004) 60 NSWLR 168, at [56]: ...it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 29A plea of guilty was entered at the earliest stage in the proceedings ( R v Thomson; R v Houlton ). The defendant is, therefore, entitled to a discount of 25 percent for the utilitarian value of its early plea of guilty. The defendant fully co-operated with the WorkCover Authority throughout the investigation of the incident. 30As to the contrition and remorse of the defendant corporation, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides "remorse" may be taken into account as a mitigating fact if, and only if: ... the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). And in Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Relations Commission of New South Wales) said, at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). 31The defendant has pleaded guilty to the charge. I have before me the most effective expression of remorse I have considered. It has been explained by Mr Nicholas: 26. In terms of assistance to the deceased's family since the incident, Allied/VES has: (a) Gary Bruce, Allied's Operations Manager at the time of the incident and myself went to see Mrs Kolomaka on the morning of the next day to express our remorse and sympathy for her loss. We offered the family counselling services through our Employee Assistance Program. A visit to the site of the incident was arranged at Mrs Kolomaka's request on the following day (Saturday); (b) Paid to have all family members brought out to Australia for Mr Kolomaka's funeral as well as paying for the funeral; (c) Established a trust fund for Mr Kolomaka's family with contributions from Allied and VES ($100,000), the Australian Workers Union, Bluescope and other contractors in the Wollongong area. 80 percent of the proceeds of the Foundation are to go to the family for long-term home and education expenses, 15 percent towards an education scholarship for a member of the Tongan community in Wollongong and 5 percent towards an industry award for safety excellence across companies in the Illawarra Region; (d) Established a memorial recreational area dedicated to Mr Kolomaka at the Port Kembla site; (e) Some 12 months after the incident held a fund-raising function for the family at Wollongong involving a dinner and auction items, all the proceeds of which went to the Foundation which raised $58,000. 27. VES and Allied wish to emphasise their contrition in respect of the tragic death of the deceased and once again extend their sincere sympathies to Mr Kolomaka's family and relatives. The defendant's family have assured the Court, through counsel, that the benefits of the fund have been accessed for the education of the children and for their safe and comfortable housing. The defendant corporation has, I find, made a serious expression of its remorse and contrition. It is to be commended. 32The defendant has no prior convictions. Therefore, the maximum penalty is $550,000. Allied has operated in the mining, industrial and steel industries, what is known as heavy industry, for some 70 years without a recorded breach of any OHS Act. It has a good industrial record. 33In the circumstances, I accept the plea and find the defendant guilty of a breach of the Act. 34A Victim Impact Statement has been received by the Court. In receiving it I adopt the words of Boland J in Inspector Glass v Foamex Polystrene Pty Ltd [2004] NSWIRComm 100 when he said, at [43]: ... the fact, however, that the Court is required in the case of a death, to receive a victim impact statement given by a family victim and acknowledge its receipt, and that the Court may make any comment on it that the Court considers appropriate, may help in releasing some of the family's grief and, importantly, it assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace. I accept the defendant has expressed contrition for the offence as indicated in its plea of guilty and has expressed remorse in the consideration provided to the family of the deceased, but I find this was a serious offence. A young family have lost their father. A young woman has lost her husband. It is an everlasting sorrow to them but there has been expressed, in a most practical way, contrition and remorse. I take into account the subjective elements placed before me.

Orders 35For all the above reasons, I make the following orders: (1)In Matter No IRC 393 of 2010, I find the defendant guilty of the offence as charged. (2)The defendant is fined in the sum of $130,000 with a moiety to the WorkCover Authority of New South Wales. (3)The defendant to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2011