Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd

Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of New South Wales (Inspector McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Markarian v R [2005] HCA 25 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 R v Sharma (2002) 54 NSWLR 300 CASES CITED: R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Wong (2001) 207 CLR 584 Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 State Rail Authority of NSW v The Honourable Justice Bauer and Others (1994) 55 IR 263 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Company Limited (1998) 83 IR 427

PROSECUTOR Ms K Nomchong of counsel Solicitor: Mr N A Correy Moray & Agnew LEGAL REPRESENTATIVES:

DEFENDANT Mr P Skinner of counsel Solicitor: Mr T P Salmon Salmon & Co Solicitors

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR GRANT VOSU v ACE SEMI-TRAILER SALES PTY LTD

Prosecution under s.8(1) of the Occupational Health and Safety Act 2000

1 Ace Semi-Trailer Sales Pty Ltd ("the defendant") conducted its business involving the provision of sales, service and repairs of semi-trailers and associated equipment from its premises at 15 Swaffham Road, Minto in the State. The defendant employed Jason Stuart Miles as workshop mechanic. Mr Miles' duties included maintenance tasks associated with replacing suspension components of semi-trailers. 2 On 10 July 2002 Mr Miles was engaged in performing maintenance tasks associated with the replacement of suspension components on a military tandem axle dolly trailer ('the trailer'). Whilst Mr Miles was underneath the suspended trailer in a seated position and working on one of the suspension bushes, the trailer collapsed. Mr Miles suffered severe injuries as a consequence of the incident involving a dislocated and severed spine, resulting in paraplegia as well as two punctured lungs.

3 The defendant was charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provides: (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 In the charge it was alleged the defendant did fail: Contrary to s 8(1) of the Occupational Health & Safety Act 2000 to ensure the health, safety and welfare at work of its employee including Jason Stuart Miles ("the worker") in that the worker, while attempting to remove a suspension bush from a Haulmark Tandem Axle Dolley Trailer ("the trailer") while working underneath the trailer, when it was supported by stands and jacks, sustained serious injuries resulting in permanent paraplegia when the trailer collapsed onto him by reason that: 1 The defendant failed to provide and maintain a safe system for the conduct of the work, in that: (a) there was no proper Safe Work Procedure in place for the conduct of the work; (b) the performance of the work on the trailer whilst the drawbar remained attached, was unsafe; (c) It did not identify, assess and control risks including instability of the drawbar relating to this particular type of trailer, once the wheels were removed, which was distinct from the standard commercial type of trailer upon which the worker was accustomed to working. 2 The defendant failed to provide such information, instruction, training and supervision in relation to the work being performed on the trailer when it was suspended with the drawbar attached, such as was necessary to ensure the health and safety of its employee, particulars of which include but are not limited to, the following: (a) the worker was not informed of the risks associated with the unusual centre of gravity of the trailer when its drawbar was attached; (b) the worker received no specific training in relation to Safe Work Procedures for the Haulmark Tandem Axle Dolley Trailer; (c) the worker was not instructed in relation to the need to remove the drawbar from the trailer before working on it whilst it was suspended; (d) the supervision of the work being performed prior to at the time of the collapse failed to identify the inadequacies in the system of work and to bring them to the attention of the worker; (e) the defendant did not provide information to the worker highlighting the differences between the trailer being worked on and the standard commercial type of trailer to which the worker was accustomed such as would have highlighted the different risks associated with it.

The defendant pleaded guilty to the charge. 5 An agreed statement of facts was tendered. It was relevantly agreed that: 6 On 10 July 2002 the worker was engaged in performing maintenance tasks associated with the replacement of suspension components on a military tandem axle dolly trailer ('the trailer') as part of his duties for the defendant.

7 At all material times the worker was conducting this work with the workshop manager, Paul Scott, who was his supervisor.

8 The trailer was situated in the centre bay of the premises whilst the work was being performed.

9 The trailer upon which the worker was working on 10 July 2002 was of a heavy duty type when compared with the normal semi-trailers in commercial use. The trailer had a drawbar attached with steel plating that added significant weight to the front of the trailer and off-set the centre of gravity of the trailer.

10 At all material times the trailer weighed approximately 2900kgs.

11 The trailer was inspected by the prosecutor at the premises on 10 July 2002 when the following observations were made in relation to it: · A registration plate was affixed to the rear of the trailer with the numerals '202-443' in green colour. Underneath the numerals were the words 'ARMY - SERVING THE NATION'. · A metal sign was affixed to the rear of the trailer with the words 'Long Vehicle' in black on a yellow background. This sign had a black border. The sign was damaged. · Two mudflaps with the word 'HAULMARK' in green on a white background were attached to the trailer, one on each side.

· Three metal plates were affixed to the front of the trailer chassis. Information from the plates included: Manufactured: Haulmark Trailers (Australia) Model: 20CD4 VIN: 6H92PXAEDVBAA0640 Date of Delivery: 22-4-97 Weight: 2900 kilograms

· The trailer had all its wheels and guards removed.

12 At all material times on and prior to 10 July 2002 the worker had not conducted work on a trailer of this kind for the military but his work had been restricted to normal semi-trailers in commercial use.

13 The worker, when working on a commercial semi-trailer would only require two stands to support the rear of such trailers because they would normally have two stands at the front of the trailer permanently attached. The trailer being worked on, however, did not have stands of its own attached to it at the front.

14 The worker and Scott had earlier in the day on 10 July 2002 used a forklift to lift the trailer and then suspended it on two stands at the front and two bottle jacks were used to support it at the back. A third bottle jack was used to support the trailer towards the front axle.

15 After the trailer was suspended on the stands and bottle jacks, the wheels were removed and maintenance work was conducted by the worker and Scott.

16 During some of the time work was being performed on the trailer, the forklift had also remained in position supporting it. At some time during the course of the work being conducted on the trailer, another employee of the defendant, Kieran Scott, sought to use the forklift and removed it, leaving the trailer supported only by the stands and bottle jacks.

17 Prior to 2.00pm on 10 July 2002 the worker conducted maintenance work under the trailer whereas Paul Scott performed other tasks associated with the trailer outside of it.

18 At all material times whilst the worker was performing the work he was using a 'creeper' floor trolley to assist with access under the trailer. At all material times whilst work was being performed on the trailer prior to approximately 2.00pm on 10 July 2002, the drawbar of the trailer remained attached to it. The weight of the drawbar attached to the trailer meant that the centre of gravity for the trailer was not centred within the chassis of the trailer itself but rather more towards the front. With the centre of gravity being off-set, an instability in the suspension of the trailer existed. 19 At approximately 2.00pm on 10 July 2002 whilst the worker was underneath the suspended trailer in a seated position on the creeper trolley and working on one of the suspension bushes, the trailer collapsed.

20 The worker suffered severe injuries as a consequence of the incident involving a dislocated and severed spine, resulting in paraplegia as well as two punctured lungs. 6 The affidavit of John Richard Beeck was read. Mr Beeck was the managing director of the defendant. Mr Beeck, 55, completed an Army apprenticeship as a fitter and turner and in 1977 a degree in mechanical engineering. In 1986, after 22 years of service he was honourably discharged from the Australian Army having attained the rank of Warrant Officer Class 1. 7 After he left the Army he was employed for four years as NSW Hire and Service Manager by Ingersoll Rand at Silverwater NSW. Ingersoll was a manufacturer of heavy equipment for the mining and earth moving industries. Mr Beeck's duties were to supervise field and workshop staff. 8 In September 1990 he was employed by Krueger Transport Equipment at Greenacre, a Melbourne based semi-trailer manufacturer. In June 1996 he formed the defendant company at Tempe. The defendant's initial business was repairing, modifying and maintaining semi trailers. The defendant's first employee was Mr Paul Scott who was recruited in 1997 as a Body Builder/Welder. Mr Scott was the workshop manager at the time of the accident on 10 July 2002. 9 By 2000 the defendant company had outgrown the Tempe premises. It relocated to its current premises at Minto on 1 April 2001. Mr Beeck approached the Australia Army at Moorebank with a view to seeking business. 10 The defendant's current workforce consists of ten persons including Mr Beeck and his wife, a workshop supervisor, five tradesmen, one apprentice and one office worker who is Mr Miles, the employee injured in the accident on 10 July 2002. Mr Beeck said that prior to the accident Mr Miles had been employed as a Body Builder but was also skilled in all aspects of semi trailer mechanical systems. 11 Mr Beeck deposed that from about June 2001 to December 2003 the defendant carried out about twenty repair jobs for the Australian Army. The usual procedure with the Army was for the defendant to be contacted by telephone, told where the equipment was located and the nature of the problem. Mr Beeck would then visit the relevant site, inspect the equipment and then prepare a quote for submission by fax to the Army. Of the twenty repair jobs, nineteen were on standard semitrailers. One job was on a road train dolly, which is the subject of the accident on 10 July 2002. 12 In relation to the accident itself Mr Beeck deposed as follows: In early July 2002, without prior arrangement, the Army delivered, to Ace's Minto premises a "Haulmark" road train dolly together with a military form setting out the required repairs …The repair job was required to be completed by12 July 2002. Apart from this document Ace did not receive any other manuals or specifications for the equipment. This was the first time that Ace had repaired a trailer of this type; however, its axles, suspension, brakes and pneumatic systems were identical to those of a semi trailer and Ace is an expert repairer of semi trailers. The only difference between a dolly trailer and a semi trailer is the method of connection to the towing vehicle whether that is a prime mover or a 'lead' or front trailer. A dolly utilizes a draw bar which connects to a tow attachment mounted into the chassis of the truck or trailer called a ring feeder and the dolly forms a platform for the attachment of an additional trailer in a 'road train' combination. A semi trailer has a 'king pin' that connects to a 'turntable' mounted atop the chassis of a prime mover or in the case of a B double combination, atop the chassis of the 'lead' or front trailer. Prior to the incident giving rise to these proceedings, 'Ace' had no previous exposure to dolly trailers because dolly trailers are used in road train combinations and they are banned from the Sydney basin roads and in fact cannot be operated east of Wellington in central NSW. Therefore the presence of dolly trailers in Sydney is limited to very few operators one of those being the military. On presentation of the trailer to Ace, a review of the work required, as nominated by the Army, revealed that the operating systems were identical to those used in semi trailers and that there was no work to be performed to the draw bar mechanism. Whilst a formal risk assessment was not completed for this particular trailer, both Paul and I inspected the trailer and I could see no reason why Ace could not perform the tasks requested and in the time frame allotted because: - (a) The operating systems fitted to the trailer were familiar to us. (b) Procedures were in place for repair functions to the operating systems fitted to this trailer. (c) Most of the repairs required by the Army were of a service nature. (d) Minor repairs only were required to the trailer's suspension. (e) There were no warning signs posted on the trailer that would have alerted us to a dangerous situation. The main repair work required to be done was to the suspension and brakes. The running gear also required servicing. Paul assigned the job to Jason. Jason would carry out the work and Paul would assist on an "as required" basis. Paul was present whilst the job was being done and he was assisting and supervising Jason at the time of the accident. Just seconds before the accident, as both Jason and Paul agree in their statements to Workcover, Jason was using a small crowbar to attempt to remove a suspension bush. Jason could not remove the bush with the small crowbar and requested Paul to hand him a larger crowbar to do the job. It was while Paul was getting a larger crowbar that the trailer collapsed due to Jason trying to remove the bush with the smaller crowbar. Paul was the author of Ace's workshop safety policy which is a document headed "TO ALL ACE EMPLOYEES" … This policy was written in 2001 soon after Ace moved to its Minto premises and says, among other things, that trestles and stands are to be used whenever equipment is lifted. Jason signed the policy when he joined Ace. I was not present when the job on the dolly was assigned or whilst the repair work was being done. Very shortly after the accident Paul contacted me on my mobile phone and I returned to the Minto premises. It appeared that the dolly had moved whilst it was been worked on by Jason, that the rear axle which was being supported by two bottle jacks had slipped and Jason was trapped underneath the equipment and injured. It further appeared that the dolly had moved in part because of the weight of the extremely heavy draw bar attached to the dolly. This support procedure was strictly against Ace's policy and all instructions to employees. Jacks were to be used as a means of lifting equipment only not as a means of support whilst work was being done. On my arrival at the workshop, Jason was being treated by an ambulance crew and two police officers were also in attendance. I did what I could to assist the police and ambulance officers. I instructed all employees to knock off for the day and waited with the police until Mr. Grant Vosu, a Workcover inspector arrived at about 4.00pm the same day. I and all Ace's employees cooperated fully with Mr Vosu, the police and the ambulance officers. The accident site was not disturbed in any way. In the statement of events that occurred on 10 July 2002 which Jason made to Mr Vosu whilst in hospital, Jason stated that he used hydraulic bottle jacks because no safety stands were available at the time. This statement is incorrect as there were an excess of safety stands available for use at the time of the accident. The workshop had eight (8) safety stands available for general use on the day of the accident and besides the two stands that Jason was using, there were two others being utilised on another job leaving a balance of four (4) available at that time. These safety stands are manufactured by Ace and have a safety rating of 3000kg in accordance with certificate issued by consultant engineers Russell Finlay & Co, … these certificates are attached to each stand by means of an engraved metal plate. The trailer being worked on had a tare weight of 2900kg and if supported by four stands would have had a safety margin of about 400%. It was obvious to me that Jason was seriously hurt. I gave him as much comfort as I could and I understand that the quick action of Ace's employees following the accident probably saved his life. I later learned that Jason had a broken back and was a paraplegic. 13 In relation to Mr Miles' rehabilitation Mr Beeck deposed: On the 24 September 2003 Jason returned to work at Ace. A number of changes were required at our facility to make the place user friendly for Jason who is now in a wheelchair. Swinging doors were erected from the office to the workshop, a new and separate air conditioned office was fabricated and installed within the confines of the workshop itself and factory personnel were consulted on how best to deal with this unusual situation. Counselling was also provided for our workshop personnel in the hope that this would soften Jason's return to work. Suitable duties were negotiated with the assistance of the rehabilitation people from Worksafe Australia and a training programme was initiated for Jason because his existing skills were technical and not administration based. Jason's current duties are the preparation and coordination of all day-to-day workshop documentation including job sheets, job and parts invoicing, quoting and booking of subcontractors. Jason is also responsible for the regular inspection of tools and equipment to ensure compliance with quality and safety standards. Ace has trained Jason in computer skills and he is responsible for using computer software for risk assessment on all workshop equipment and semi trailers. Jason is also on Ace's safety committee which meets once per month. Jason has made steady progress in this new role. I hope that eventually Jason will manage all the administration functions for the workshop, spare parts and trailer sales and I am very optimistic that he will have a worthwhile career in this role. He is an intelligent and hard working individual and is popular among his peers and management alike. After his return to work I noticed that Jason was experiencing some emotional problems evident as our working relationship became closer. Through discussions with Jason I encouraged him too seek counselling in the hope that a social worker would assist him to come to terms with the events that led to this tragedy. I'm pleased to say that since his counselling sessions with a counsellor named John Smith , from Australian Workplace Solutions. Jason is now coping much better with his situation and his environment. This counselling is on going and Jason's time off to attend counselling sessions is paid for by Ace. 14 Mr Beeck said since the accident the defendant had engaged Australian Workplace Solutions and now uses their 'SHE' software program for the development of workplace risk management strategies and the defendant's own Occupation Health and Safety Manual. Further, that since the accident the defendant had made a conscious decision that it would not perform any work on road train dollys and trailers of the type involved in the accident. The Australian Army had been advised of this decision. 15 Mr Beeck said he had sought to maintain the highest standards of care and safety for employees and had done this in the following ways: (a) The preparation of the OH&S Manual. This document is constantly being reviewed in an effort to prevent accidents of any kind. (b) The use of the "SHE" software program …which is designed to carry out a detailed written risk assessment on all equipment used by Ace and all tasks undertaken by Ace. This risk assessment is carried out on all equipment and on all tasks. (c) The setting up of a company safety committee consisting of myself, Jason and our workshop supervisor Keiran Scott. The committee meets once per month to discuss any safety issues and methods of solving those issues. (d) By being constantly vigilant myself about matters of safety and encouraging the same vigilance in all company staff.

16 Mr Beeck stated that he was "personally deeply sorry for the accident and the consequent catastrophic injury suffered by Jason."

17 Mr Beeck also gave evidence in relation to his income and other means. 18 There were four letters tendered as character references for Mr Beeck. They confirmed the Court's view of Mr Beeck as an honest, hardworking caring individual. 19 The defendant had no prior convictions. Consideration

20 The Court is required to exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss3A (purposes of sentencing), 21A (Aggravating, mitigating and other factors in sentencing), 22 (Guilty plea to be taken into account), 22A (Power to reduce penalties for pre-trial disclosure) and 23 (Power to reduce penalties for assistance provided to law enforcement authorities) of the Crimes (Sentencing Procedure) Act 1999. 21 Further, as the Full Bench observed in Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 at [13]: [T]he sentencing practice established in this Court under the Occupational Health and Safety Act involves a consideration of both the objective and subjective factors relevant to the offence and the offender. The primary factor is the objective seriousness of the offence, which involves an objective assessment of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. Subjective factors play a subsidiary role in the determination of penalty. In Lawrenson Diecasting at 475 the Full Bench put it this way: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. 22 Since this matter was heard on 19 April 2004, the High Court gave judgment in Markarian v R [2005] HCA 25 (18 May 2005). The matter involved an appeal from the Court of Criminal Appeal of New South Wales in relation to the sentencing of an offender convicted of an offence under the Drug Misuse and Trafficking Act 1985. The question for the High Court was whether the Court of Criminal Appeal failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown. 23 In a joint judgment (Gleeson CJ, Gummow, Hayne and Callinan JJ) the Court considered two approaches to sentencing, namely, the "instinctive synthesis" approach, and what has been called a "two-stage" or "two-tiered" approach. In the joint judgment, the Court referred with approval to what was said by Gaudron, Gummow and Hayne JJ in R v Wong (2001) 207 CLR 584 at 611-612. There the Court said in respect of the two approaches: Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. In R v Thomson Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that: 'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.' So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform." (emphasis in original)

24 Following the reference to Wong it was further stated in the joint judgment in Markarian at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge. 25 At [24] and [27], however, it was stated in the joint judgment: Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account. … Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 26 In the joint judgment in Markarian it was held that the Court of Criminal Appeal had erred, principally because of the particular approach taken by Hulme J (with whom Heydon JA and Carruthers AJ agreed). In this respect, see [31]-[33]. 27 In a separate judgment McHugh J also discussed the two approaches to sentencing, expressing a strong preference for the instinctive synthesis approach. His Honour described the two approaches at [51]: By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence. 28 Whilst Kirby J agreed with the other members of the Court that the Court of Criminal Appeal had erred in adopting the wrong starting point (the quantity of the heroin the subject of the principal offence and the maximum sentences fixed by the relevant legislation for specific quantities), his Honour offered, with respect, a spirited defence of the two-tier approach to sentencing and a strong critique of the instinctive synthesis approach. 29 In R v Sharma (2002) 54 NSWLR 300 the Court of Criminal Appeal held that Wong did not require it to overrule R v Thomson; R v Houlton. The disapproval in Wong of the "two-tier" approach was, of course, made by only three of the Justices. In Markarian the disapproval of that approach was voiced by the majority but on my very tentative assessment it does not seem to me that expression of disapproval is sufficient to cause the sentencing practices in this Court to be abandoned. Those practices include taking into account all of the factors of the case, both objective and subjective. Moreover, the practice of nominating a specific discount made, for example, on account of the offender's plea of guilty, is not something the High Court has sought to overrule. 30 In any event, it is not for me to determine in this judgment the implications of Markarian for the sentencing practices of the Commission in Court Session, especially when I have not been addressed on the implications and where s 42A of the Crimes (Sentencing Procedure) Act 1999 requires me to take into account the relevant guideline judgments in sentencing. It seems to me, therefore, I am required to continue take into account the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383. 31 I turn to a consideration of the factors to be taken into account. The risk in this case was the risk of the trailer collapsing whilst being worked on, thereby causing injury. As to the objective seriousness of the offence, the defendant failed in two respects to ensure the safety of Mr Miles. That is, the defendant failed to provide: (a) a safe system of work; and (b) information, instruction, training and supervision. 32 As to the first failure, the defendant had not previously performed work on this type of trailer, which was a tandem axle dolly trailer with an extra long drawbar. Notwithstanding this fact no safe work procedure was provided to Mr Miles in carrying out the maintenance work on the trailer and so the defendant had not identified, assessed or taken any steps to control the risks associated with working on this particular trailer. 33 Mr Beeck acknowledged that a formal risk assessment was not conducted but that he and Mr Scott inspected the trailer and he could see no reason why the defendant could not perform the tasks. 34 Whilst, on the surface, the trailer may have appeared similar to other trailers worked on by the defendant, there were important differences. One of these was the extra long drawbar that caused more weight to be at the front end of the trailer than was the case with other types of trailers and the trailer did not have stands permanently attached to the front end upon which the trailer could rest. 35 In order to work on the trailer it had to be placed on two safety stands at the front, a bottle jack was used to support the front axle and two other bottle jacks supported the rear axles. A forklift had also been used initially but was removed later in the procedure. The wheels were then removed. In this state the trailer was inherently unstable because the centre of gravity was not where it might normally be expected to be but rather it was towards the front of the trailer because of the long and heavy drawbar. 36 The work being performed by Mr Miles involved, amongst other things, removing one the bushes from underneath the trailer and he was having some difficulty with that task. The normal procedure for removing bushes was to knock the pins out with a hammer and a bar and then insert the bar into the radius rod bush and lever it up and down until the bush released. Mr Miles was using a lot of force and wiggling of the radius rods to get the bushes out on the day of the accident. 37 It appears that as Mr Miles was applying force, the trailer moved and collapsed on top of him. Mr Beeck opined that: [T]he dolly had moved whilst it was been worked on by Jason, that the rear axle which was being supported by two bottle jacks had slipped and Jason was trapped underneath the equipment and injured. It further appeared that the dolly had moved in part because of the weight of the extremely heavy draw bar attached to the dolly. 38 Mr Beeck deposed that the procedure used to support the trailer was strictly against the defendant's policy and all instructions to employees. Jacks, he said, were to be used as a means of lifting equipment only, not as a means of support whilst work was being done. The proper means of support were safety stands and Mr Beeck claimed that there were sufficient stands available in the workshop but they were not used, as they should have been, and bottle jacks were used instead. 39 Had a proper evaluation of the risk been undertaken by the defendant, it would have become apparent that the long and heavy drawbar and the absence of permanently attached stands to the front of the trailer required the adoption of a particular system of work that ensured the trailer was adequately supported and would not collapse on any person working underneath. The defendant failed to ensure such a safe system of work was provided. 40 As to the second failure, namely, the failure to provide information, instruction, training and supervision, in the absence of a proper assessment of the trailer prior to commencing maintenance work on it, the significant feature associated with the drawbar causing instability was not identified. Consequently, Mr Miles was not informed of that feature. He was not informed, in particular, of the need to remove the drawbar prior to commencing maintenance.

41 Similarly, Mr Miles received no specific training in relation to the trailer, it being assumed by the defendant, in the absence of a proper assessment of the risk, there were no peculiar features beyond those normally encountered. 42 In so far as supervision was concerned, it was clearly inadequate on the day having failed to identify the risks associated with performing maintenance work on that particular trailer, and allowing a system of work that involved a combination of stands and unstable bottle jacks to be used to support the trailer when considerable force was necessary to be applied to remove the bushes thereby causing the trailer to move on its supports. 43 The defendant in this case did not know of the risk and it was not an obvious risk; the defendant had not performed work on this type of trailer before and was unaware of the inherent instability associated with the drawbar. Where the defendant failed here, however, was that it did not actively search out the risk and put in place an adequate system of work to ensure workers were not exposed to the risk and were given adequate information, instruction, training and supervision. 44 The observation by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85 is apposite: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 45 The risk associated with maintenance work on a heavy trailer, however, was reasonably foreseeable and was foreseen by the defendant. As the prosecutor submitted, it is apparent that the placement of a heavy trailer on jacks and stands requires some judgment as to the placement of those stands and jacks due to the possibility of the trailer not being properly supported. It is foreseeable that if there was a failure to ensure that jacks and stands were properly positioned given the characteristics of the trailer, persons working on the trailer would be exposed to risk. Moreover, the defendant was aware of the risks associated with working on their "normal" trailers because it had in place both a written system of work to ensure that the maintenance work on trailers would be done safely and without risk of injury and a system of training and instruction. 46 It follows that although the risk was foreseeable this was not a case of a defendant having no safety systems in place, or lacking regard for the importance of safety in the workplace or completely ignoring known dangers. The existence of safety procedures and instructions is a factor that should mitigate against the seriousness of the subject offence: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342; WorkCover Authority of New South Wales (Inspector Riley) v Broken Hill Company Limited (1998) 83 IR 427 at 429; and Department of Mineral Resources of New South Wales (Inspector McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 at 25. 47 The failure here, however, was that the defendant did not address the particular risks associated with the dolly trailer so as to satisfy itself that work on the trailer was safe and, consequently, did not put in place the particular measures necessary to ensure safety. 48 Had the defendant comprehended the presence of the risk, as it should have, it could have taken relatively simple steps to avoid the risk. A proper risk assessment, for instance, would have revealed the peculiar risks presented by the dolly trailer and either the defendant could have declined to work on the trailer or, alternatively, could have ensured the drawbar was disconnected and the trailer was properly supported. A proper risk assessment before work was carried out on the trailer would have undoubtedly resulted in specific instructions being given to provide proper support for the trailer and adequate supervision would have been provided. 49 In Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 the Full Bench held: [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: Hannah v Wonar Pty Ltd (unreported), Fisher CJ, Glynn and Cullen JJ, CT 90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty. Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. [33] Thus it may be the case that an employer prosecuted under s.15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case. 50 The injury to Mr Miles ranks amongst the most serious; it is evidence of the existence of a very serious risk. However, in assessing the gravity of the offence it is more akin to the second category described in Powercoal than the first. That is to say, the defendant had a good safety record, a generally safe system of work in place, provided training, instruction and supervision but, as the prosecutor submitted, due primarily to an unfortunate combination of events which began with the fact that the defendant had not performed work on this type of trailer before and was unaware of the inherent instability associated with the drawbar, Mr Miles was placed at risk of injury.

51 In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. It is appropriate to include in any penalty an element for general deterrence to deter others from committing similar offences. 52 As for specific deterrence, the Full Bench in Capral Aluminium adopted the approach taken by Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384. At [76] the Full Bench stated "… the propensity to re-offend must be considered when determining the weight to be attached to specific deterrence." The defendant is unlikely to re-offend. The defendant has made a decision that it will not, in future, maintain or service trailers of the type involved in the injury to Mr Miles. Further, the defendant has taken appropriate steps in relation to its occupational health and safety policies and practices, to avoid a re-occurrence of the circumstances that gave rise to the accident on 10 July 2002. 53 That brings me to a consideration of the subjective factors that may mitigate the seriousness of the offence committed by the defendant. The defendant entered an early plea of guilty and should be entitled to a discount of 25 per cent for the utilitarian value of that early plea.

54 Sections 21A(3)(e) and (f) of the Sentencing Procedure Act provide: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, …

55 The defendant here has no previous record and may be said to be a good industrial citizen. 56 Section 21A(3)(i) of the Sentencing Procedure Act provides: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, …

57 The defendant has shown remorse by means of its assistance to the injured employee. This has involved an extensive rehabilitation and retraining program for Mr Miles and the defendant undertaking extensive alterations to permit Mr Miles to work in his wheelchair. The assistance the defendant has provided to Mr Miles is commendable even in the context of an obligation on employers to assist and cooperate in rehabilitation: (Sheller JA (with whom Kirby P and Meagher JA agreed) in State Rail Authority of NSW v The Honourable Justice Bauer and Others (1994) 55 IR 263). 58 Section 21A(3)(m) of the Sentencing Procedure Act provides: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

59 The evidence was that the defendant offered cooperation and assistance to the investigating authority following the incident on 10 July 2002. 60 I have also taken into account the size of the defendant's business operation and the fact it is a small family business. 61 As I have previously noted, the defendant has taken steps to remedy the unsafe system of work. 62 Finally, in determining the appropriate penalty in this case, I have also had regard to the fact that the maximum penalty is $550,000. 63 Taking account of all of the circumstances of the offence and the offender, I consider the penalty should be $80,000. Orders

64 The Court makes the following orders: 1) A verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $80,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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