Inspector Wade v Sid Fogg & Sons Pty Ltd

LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Inspector Farrell v The Salvation Army (NSW) Property Trust [2003] NSWIRComm 229 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 228 CLR 357 Mill v R (1988) 166 CLR 59 CASES CITED: Morrison v Powercoal Pty Limited (2003) 130 IR 364 R v Blanco [1999] NSWCCA 121 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 51 R v Way (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (Schmidt J, CT93/1025, 25 February 1994, unreported)

Mr I Taylor of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Ms P E McDonald of counsel (Defendants) Sparke Helmore, Solicitors

Matter No IRC 1921 of 2008 INSPECTOR PAUL KENNETH WADE v SID FOGG & SONS PTY LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 1922 of 2008 INSPECTOR PAUL KENNETH WADE v GRAHAM STANLEY HABGOOD Prosecution under s8(2) by virtue of s26(1) of the Occupational Health and Safety Act 2000

1 These prosecutions are brought by Inspector Wade of the WorkCover Authority of New South Wales against the company, Sid Fogg & Sons Pty Ltd (the corporate defendant) and one of its directors, Graham Stanley Habgood (the individual defendant), under s 8(2) of the Occupational Health and Safety Act 2000 (the Act), by way of an Application for Order in each matter. 2 In matter No. IRC1921 of 2008, it is alleged the corporate defendant, on 12 October 2006, contravened s 8(2) of the Act in that it failed to: ensure that people other than its employees, in particular Jared Preece, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking whilst they were at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 3 In particular, it is alleged: a. The defendant failed to undertake any or any adequate risk assessment in relation to the use of an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums previously used to store oil; b. The defendant failed to provide adequate supervision at the site; c. The defendant failed to instruct or properly instruct Jared Preece of the hazardous nature of using an oxy-acetylene torch to cut open 205 litre Mobil drums; d. The defendant failed to provide appropriate procedures for the disposal of 205 litre Mobil drums; e. The defendant failed to provide and maintain a safe system of work relevant to the task of using an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums; f. The defendant failed to provide any or any adequate personal protective equipment to Jared Preece when using an oxy-acetylene torch; g. The defendant failed to provide training or any adequate training to Jared Preece relevant to the task of using an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums; h. As a result of the said failures, Jared Preece was placed at risk of injury and was injured whilst employed at the site. 4 In matter No. IRC1922 of 2008, it is alleged the individual defendant Graham Stanley Habgood, on 12 October 2006, contravened s 8(2) of the Act in that he failed to: ensure that people other than the corporation's employees, in particular Jared Preece, were not exposed to risks to their health or safety arising from the conduct of the corporation's undertaking whilst they were at the corporation's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. 5 In particular, it is alleged: a. At all material times the defendant was a director of the corporation; b. The corporation failed to undertake any or any adequate risk assessment in relation to the use of an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums previously used to store oil; c. The corporation failed to provide adequate supervision at the site; d. The corporation failed to instruct or properly instruct Jared Preece of the hazardous nature of using an oxy-acetylene torch to cut open 205 litre Mobil drums; e. The corporation failed to provide appropriate procedures for the disposal of 205 litre Mobil drums; f. The corporation failed to provide and maintain a safe system of work relevant to the task of using an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums; g. The corporation failed to provide any or any adequate personal protective equipment to Jared Preece when using an oxy-acetylene torch; h. The corporation failed to provide training or any adequate training to Jared Preece relevant to the task of using an oxy-acetylene torch for the purpose of cutting 205 litre Mobil drums;

As a result of the said failures, Jared Preece was placed at risk of injury and was injured whilst employed at the site. 6 The defendants plead guilty to the charge. 7 Mr I. Taylor of Counsel appeared for the prosecution and Ms P.E. McDonald of Counsel appeared for the defendants. The prosecution relied upon an Agreed Statement of Facts, 13 coloured photographs, a Factual Inspection Report, the Prior Industrial Record of the defendants and an Australian Standard 4839-2001. 8 The defendants relied upon an affidavit of Graham Habgood sworn 14 August 2009. A number of relevant documents were attached to the affidavit including documents in relation to the investigation of the incident, work method statements and posted safety warnings. A personal reference was also relied upon. 9 The Agreed Statement of Facts relevantly reads: 3. At all material times Sid Fogg conducted the business of a passenger bus and coach operator. As part of the business Sid Fogg also undertook mechanical repairs to its fleet. Sid Fogg was registered as a company on 11 September 1958. 4. At all material times Sid Fogg was an employer. 5. At all material times Graham Stanley Habgood of 364 Fullerton Cove Road, Fullerton Cove in the State of New South Wales ("Mr Habgood") was a director and the general manager of Sid Fogg. 6. At all material times Mr Habgood and Kathleen Sara Habgood ("Mrs Habgood") were directors of Sid Fogg. 7. Mrs Habgood undertook administrative duties, including the preparation of extended tour itineraries and day tours. 8. Mr Habgood had control over the day to day operations of Sid Fogg and was responsible for occupational health and safety consultation with employees and non-employees of Sid Fogg.

Employees of Sid Fogg 9. Sid Fogg employed Andrew Fuller ("Mr Fuller") as a diesel mechanic. Mr Fuller, who was aged 34 at the time of the incident, has been employed by Sid Fogg for approximately 13 years, was the mechanical workshop supervisor as at the date of the incident and the most senior mechanic in the workshop. Mr Fuller is a qualified heavy vehicle/diesel mechanic. 10. Sid Fogg employed Daniel Fraser ("Mr Fraser") as a qualified motor mechanic. Mr Fraser, who was aged 23 at the time of the incident, had been employed by Sid Fogg for approximately 4 months (since 7 June 2006) as at the date of the incident. 11. Hunter Valley Training Corporation Pty Ltd ("Hunter Valley Training") is an organisation that employs approximately 1300 apprentices across a range of industries. 12. Hunter Valley Training employed Jared Preece ("Mr Preece") as a fourth year apprentice heavy vehicle mechanic. There was a formal Host Employer Agreement between Hunter Valley Training Corporation and Sid Fogg for Mr Preece to undertake work placement with Sid Fogg. Mr Preece undertook work, received instruction, information, supervision and training from Sid Fogg as "host employer". Mr Preece commenced work with Sid Fogg on 19 June 2006 as an apprentice in the vehicle workshop located at the premises. At the time of the incident Mr Preece was aged 21 years and was approximately 6 weeks away from completing his apprenticeship. 13. Mr Fuller supervised Mr Fraser and Mr Preece. When Mr Fuller was not available to supervise Mr Preece, Mr Preece took instruction from Mr Fraser. Mr Fraser had no formal responsibility for the supervision of Mr Preece. Mr Habgood was responsible for the overall supervision of the vehicle workshop, including supervision of Sid Fogg employees.

The premises 14. The entire workshop building measures approximately 24 metres wide by 40 metres long. The building has a dividing wall with the storeroom and shelter area on one side and the vehicle workshop area on the other. The dimensions of the vehicle workshop area are 40 metres long by 12 metres wide with a pitched roof at 12 metres in height. The vehicle workshop is open, full width to eave level, at the eastern end. The western end opens to allow buses and coaches access to the workshop. The western end was open on the day of incident.

The incident 15. Sid Fogg used drums of engine oil ("oil drum") as part of servicing and maintenance of the coaches. The oil drums used at the premises were 205 litre Mobil Delvac MC 15W40 Engine Oil drums. The oil drums were labelled as "Mixed Fleet Diesel/Petrol Engine Oil". The oil drums had a red lid approximately 75 mm in diameter, and had 3 bung hole caps of various sizes in the lid of the drum. Full oil drums were stored on a pallet in the workshop adjacent to the area where the coaches were serviced. When these oil drums were emptied they were placed in an area outside the rear of the workshop. 16. Prior to 12 October 2006, the mechanics at Sid Fogg's would, from time to time, use an oxy-acetylene torch to cut open an empty oil drum so that it could be used for storage or scrap metal parts or other waste. Mr Habgood was aware of this prior the incident. 17. Mr Preece had seen both Mr Fuller and Mr Fraser cut an empty oil drum prior to the incident and Mr Fuller on one occasion gave informal instruction to Mr Preece on how to perform the work. 18. On 12 October 2006, prior to 12.35 pm, Mr Fraser instructed Mr Preece to use an oxy-acetylene torch to cut the top off an oil drum, previously used to store oil. Mr Fuller was absent from the premises at the time. Prior to leaving the workshop, Mr Fuller allocated Mr Preece and Mr Fraser tasks which included Mr Preece draining the oil out of a bus and replacing bearings in hubs and Mr Fraser working on some lights on another vehicle. 19. Mr Fraser moved the empty oil drum off the storage pallet and placed it standing upright in the middle of the workshop, which was an open area, with all the bungs still in place at the top of the drum. 20. Neither on the day of the incident nor at any earlier time had Mr Fraser instructed Mr Preece on how to safety cut the top off the oil drum using an oxy-acetylene torch. 21. Mr Preece obtained oxy-acetylene equipment and prepared to perform the required task. Although safety goggles were available, they were sometimes difficult to locate at the premises. Mr Preece was unable to find safety goggles and put on a pair of sunglasses as a substitute. 22. Prior to Mr Preece commencing the task of cutting the top off the empty oil drum using an oxy-acetylene torch, no other person inspected or reviewed his proposed methods for completing the task. Mr Fuller was away from the premises and Mr Fraser was in another part of the workshop and could not see Mr Preece. 23. Mr Preece commenced the cutting operation and when the flame of the torch punctured the skin of the drum an explosion occurred. The force of the explosion blew the lid off the top of the drum so that it struck the underside of the roof of the workshop, approximately 12 metres above, breaking off part of the corrugated iron of the roof. A section of corrugated iron approximately 40 mm wide by 80 mm long was found which was a part of the roof that had been dislodged as a result of the explosion. 24. That part of the corrugated iron roof which had been broken by contact with the drum lid, landed outside the premises. The explosion caused a flame within and external to the drum, which was located on the floor of the workshop. A small fire was also started in the grass adjacent the workshop opening. 25. Mr Fraser and other employees used a fire extinguisher to extinguish the fire in the workshop. Employees assisted Mr Preece, ensuring he was not on fire, removed his clothing and applied cold water to Mr Preece's face and body. 26. Mr Preece suffered minor burns to his face, top of his chest and forearms, as well as suffering a temporary loss of hearing and smell. Mr Preece was taken to Maitland Hospital by his mother to check his injuries. He was treated as an outpatient and was given Panadol and some cream for his face. 27. Mr Preece recovered from his injuries and returned to his pre-injury duties. However he did not return to work at Sid Fogg. 28. The use of an oxy-acetylene torch to cut the top off a drum is contra-indicated by the material safety data sheet issued by Exxon Mobil Australia, the supplier of the drum, on 20 April 2006. Section 13 of that document states: "DO NOT PRESSURISE, CUT, WELD, BRAZE, SOLDER, DRILL, GRIND OF EXPOSE SUCH CONTAINERS TO HEAT, FLAME, SPARKS, STATIC ELECTRICITY, OR OTHER SOURCES OF IGNITION; THEY MAY EXPLODE AND CAUSE INJURY OR DEATH."

29. Clause 10.1.5 of Australian Standard 4839-2001: The safe use of portable and mobile oxy-fuel gas systems for welding, cutting, heating and allied processes , provides: 'No work should be carried out, e.g. welding or cutting, on any tank or container until the contents or previous contents are known.

Upon establishing what was in the container, flush or clean out with water or a suitable cleansing agent.

Work should proceed with the danger of fire or explosion is declared by a competent person to be negligible.'

System of work before the incident 30. On the job training was provided to Sid Fogg employees and Mr Preece. 31. Mr Habgood never instructed or supervised Mr Preece in cutting off the top of an empty oil drum with an oxy-acetylene torch. 32. Mr Fuller had cut the tops off empty oil drums on numerous occasions by taking the bungs out first and occasionally filling them up with water. 33. Mr Fuller had shown Mr Preece, prior to 12 October 2006, a procedure for cutting the tops of empty oil drums by taking the bungs out, and waving the oxy-acetylene torch across the drum. 34. Mr Fuller did not show Mr Preece the procedure for cutting the tops of empty oil drums with an oxy-acetylene torch by using water to fill the drum. 35. Mr Fraser had not as at 12 October 2006 told Mr Preece to make sure he filled the empty oil drum up with water prior to cutting it with an oxy-acetylene torch.

System of work after the incident 36. On 13 October 2006, the day after the incident, WorkCover Inspector Paul Wade issued a prohibition notice 140896 to Sid Fogg & Sons Pty Limited prohibiting persons from using an oxy-acetylene torch to cut empty oil drums unless they were trained to do so in accordance with a safe system of work. 37. Sid Fogg subsequently determined to stop re-using empty oil drums and prohibited cutting the lids off empty oil drums with an oxy-acetylene torch. 38. Sid Fogg reviewed its systems of work for the task of cutting open empty oil drums with an oxy-acetylene torch Co-operation 39. The defendants have co-operated with WorkCover during the course of the investigation and prosecution.

Costs 40. The defendants agree to pay the prosecutor's costs as agreed or assessed.

Relevant Principles 10 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (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(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 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). 11 Their 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]). 12 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, 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 element 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. 13 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.

Consideration 14 In a reading of the Agreed Statement of Facts, I am satisfied the plea of guilty has been established as to five of the particulars relied upon in the Applications for Order. The exception is as to the pleading there was a failure to properly instruct (particular (d)) which particular was repeated in the allegation there was a failure to provide training and adequate training (particular (g)). Given each particular alleges the same failure I reject particular (g). I am further satisfied particular (d), which asserts alternative procedures for the disposal of the said mobile drums, is not itself an asserted failure which failure contributed to the relevant risk nor an action which contributed to the risk and I therefore reject this particular. Nonetheless I am satisfied, on the evidence, the plea of guilty by both defendants is established and is an appropriate plea in the circumstances. 15 In 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 " . . .

Further, as was said in Morrison v Powercoal Pty Limited (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 ... 16 As to the objective seriousness of the offence or, what in authorities has been referred to as "the nature and quality" of the offence, I take into account the defendant company operates in three separate divisions: its coach operations; its travel and school operation; and its maintenance operation. This charge relates to the maintenance section of the defendant company where the defendant employed two mechanics. At the time of the offence the defendant corporation, through the agreement of its Director (the other defendant Mr Habgood), had obliged the Hunter Valley Training Corporation, by taking in a fourth year apprentice, Jarrett Preece, who had only a few months to finish his apprenticeship. 17 The defendant corporation, as a matter of practice, disposed of its mobile oil drums in one of two separate ways - they were either collected for recycling or, alternatively, were used to store scrap metal. On 12 October 2006, the young apprentice, Mr Preece, was instructed to take off the top of one of the oil drums to prepare it for the storing of scrap metal. The procedure he followed was that which had been demonstrated to him, but he did not at first take out the bungs on the drum nor wash out the drum. The procedure had not been published in a safe work document nor had he been shown any safe work procedure in writing. However, at the worksite, I accept warnings had been posted and he had had demonstrated to him a safe way of performing the task. Once the apprentice applied the oxy-acetylene torch to the drum, there was an explosion from collected fumes and also a fire because of the ignition of remaining oil inside the drum. Protective equipment for the employee, while provided, was not on hand. His supervisor, Mr Andrew Fuller, an experienced tradesman, however, was not on site at the time the young apprentice was required to perform the task. 18 Mr Preece was exposed to a serious risk of injury and in fact suffered burns but not of a serious degree. He, however, did not complete his apprenticeship at this workplace, though he did graduate. As was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . .

The 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 defendants ( Lawrence Diecasting Limited 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 apply an oxy-acetylene torch to a container where there could be an accumulation of fumes and which contained combustible material which could ignite. 19 The 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) 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.

This was a routine task performed in the maintenance section of the defendant company; there was a failure to perform a risk assessment of the task; there was a failure to identify the risk associated with the use of an oxy-acetylene torch; there was a failure to refer to the notices and safety data sheets that were available. The supplier had clearly warned of the risk and this was a clear breach of an Australian Standard for the performance of such work around combustible material. I find there was a foreseeable element to the offence which makes it an even more serious offence. 20 The 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 Glass) v ACI Operations Pty Limited (Schmidt J, CT93/1025, 25 February 1994, unreported). 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. 21 The 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.

The defendants continue to operate and perform all maintenance on their vehicles so an element of specific deterrence is relevant. An element of general deterrence in the court's consideration of penalty is most relevant given the objects of the Act. The defendants submit the facts in this prosecution do not demonstrate a particular problem arising in its industry ( Morrison v Powercoal (2003) 130 IR 364) such that there should be a major consideration in penalty for this element of the offence. The industry, the defendant submits, has already attracted the design of an Australian Standard which standard provides a safe work analysis for this type of task. Further, particular warnings had been posted to all maintenance divisions by the supplier. Therefore, the industry was already on notice of the inherent dangers in the task. However, notwithstanding all the warnings have been acknowledged, these defendants were in breach. These prosecutions must be a reminder that even obvious risks, well known within an industry, must be continually guarded against and in recognizing inherent dangers there must be rigorous reiteration of even the most basic of steps to ensure compliance with occupational health and safety standards. Directors are responsible to ensure the adherence to known safety standards. There is to be an element of general deterrence to this penalty. 22 I am, however, satisfied comprehensive safety measures were taken after the incident, which measures were initiated by the individual defendant as a director of the corporation, demonstrating an ongoing commitment to safety standards. While the attitude of the defendants to questions of workplace safety before the incident have been brought into question, the steps taken to refine and put in writing the safe work methods following the incident are relevant to the court's consideration of penalty. While I accept a number of safe work procedures and practices were in place at this worksite, those procedures were not documented prior to the incident and there was no evidence the risks associated with the task were warned against. I accept those undocumented work practices in operation at the workshop have now been written into the safe operating procedures. Employees on site are now instructed and trained to not only perform each task in accordance with the defined safe work procedure, but are required to refer to the safe operating procedures and to regularly review the recommended safe work practice before the performance of each task. I accept this procedure is now rigorously enforced. I am persuaded the corporation now operates with defined safe work procedures and therefore I do not expect either defendant to re-offend. 23 It 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 defendants. As was said in R v Way (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)). 24 A number of significant subjective factors pertaining to the defendant company and the prosecution of one of its directors have been placed before the court. Neither the corporation nor Mr Habgood have any prior convictions recorded against them. The defendant company has been in operation for over 50 years and Mr Habgood has run the company since 1989. I am satisfied both the company and Mr Habgood have a history of good industrial citizenship (Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159). They contribute to the community life of Newcastle and its surrounds, not only through financial donations but through the provision of free coach services, or its service at a discounted rate, for community activities. Testimonials as to the generous operation of the company from its beneficiaries are before me, as are personal testimonies of Mr Habgood's fine character. 25 There was some fear expressed by Mr Habgood that in being convicted of a breach of the Occupational Health and Safety Act he would not be eligible to either hold a license to operate the coach company nor to obtain a visa to visit the USA. I have seen no evidence to support either contention. Mr Habgood is, from the evidence, a most reputable member of the community. The breach relates to the confines of the standard of care required at a worksite under his auspice and supervision on a particular day. He has expressed remorse. On the evidence before me, I accept he is a person who through a lifetime of hard work, has made a fine contribution within his community. I would expect this aberrant breach will not be repeated. 26 I am satisfied each defendant has accepted responsibility for the incident. I note in court the presence of both directors of the company and the children involved in the company's operations. The concern expressed for the injured employee through contact with his family and the Hunter Valley Training Company is noted. I also specifically take into account this company was asked to assist the Hunter Valley Training Corporation in providing training for an apprentice through his last few months of apprenticeship and they co-operated in doing so. However, the obligation carried by an employer in assuming responsibility for the training of a young apprentice is onerous and places upon an employer an extra burden to ensure safe working practices by a young person through rigorous training and supervision. Unfortunately, in this case, careless practice led to the injury of a young apprentice. 27 The prosecutor submitted the plea of guilty was not an early plea. This is a criminal prosecution against a corporation and one of its directors. At the second mention of the matter the defendants gave notice to the court that a plea of guilty was likely and the plea was entered before the court at the next mention. I believe these defendants were entitled to give consideration to their circumstances where each was facing a criminal charge. That fact clearly came as a shock to the individual defendant. Each defendant sought legal advice. I am satisfied there has been a utilitarian value in the timely entry of the plea by both defendants. They are entitled to the benefit of the discount of 25 percent (R v Thomson; R v Houlton [2000] 49 NSWLR 383). 28 The prosecutor agreed both defendants have provided full co-operation to the WorkCover Authority through the investigation of the incident. 29 The defendant company is a proprietary company formed in 1958. I accept it is a family company; its two directors are the husband and wife, Mr Graham and Mrs Kathleen Habgood. They are the shareholders of the corporation and their children are employed by the corporation. Mr Habgood has been the company's manager since 1989. The daughter, Katie, and their son, Michael, were responsible for putting into writing the new safe operating procedures. I am satisfied the corporation now gives a high priority to occupational health and safety. I accept before the incident, and since, Mr Habgood takes an active role and involvement in the occupational health and safety standards of the defendant company. Notices were posted regularly in the maintenance shed drawing safe work practice to the attention of employees and were often designed by Mr Habgood. They were placed throughout maintenance areas. 30 At the sentencing hearing the defendants noted there had been a delay of nearly three years from the date of the offence to the sentencing and put a submission this delay should be taken into account in determining the sentence to be imposed on Mr Habgood. The defendant cited in support of the submission: R v Todd [1982] 2 NSWLR 517; Mill v R (1988) 166 CLR 59; and R v Blanco [1999] NSWCCA 121. The court invited both the defence and prosecutor to provide supplementary submissions on the issue in writing. 31 In this case the relevant dates are: date of incident - 12 October 2006; proceedings commenced - 9 October 2008; guilty plea entered - 20 April 2009; sentencing hearing - 18 August 2009. 32 The prosecutor submits in the circumstances of this case, the consideration as to penalty should not be affected as a consequence of an element of delay. The proposition that "delay" in mitigation of an offence only has applicability where the sentencing occurs after an "extended delay" is not revealed in the circumstance before the court, the prosecution submits. The defendants submit during the period between the date of the offence and the date of sentencing Mr Habgood has demonstrated his and his company's rehabilitation. It is also a period during which Mr Habgood has been punished to some extent by having the charge hanging over his head. Therefore, the delay should be taken into account in mitigation in determining sentence. 33 The prosecution statement the principle of delay only applies after "an extended delay" and only in unusual circumstances is rejected. 34 A sentencing court may take into account in mitigation a delay between the time of the offence and the time of sentence in a particular circumstance where there could be an unfairness. In R v Todd [1982] 2 NSWLR 517, Street J considered the circumstance where an offender had committed a number of offences within a short period of time but in different States - New South Wales and Queensland, hence the sentences were imposed separately and the sentences by the second State (New South Wales) were imposed after the expiration of the sentence imposed by the first State (Queensland). The offender committed the offences in 1974 and he was sentenced in NSW in 1979. Street CJ stated (at 519-520): . . . where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to be given to the progress of his rehabilitation during the term of his earlier sentence or otherwise, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

In the application of the principle in R v Blanco (at 66) there was evidence of an unexplained delay by the prosecution. In Mill v R (1988) 166 CLR 59 (at 66.5) the High Court held a long delay and uncertainty raises questions as to fairness. Any such delay should be explained. Delay could in some circumstances prohibit rehabilitation and if there is such evidence it should be given weight in the sentencing process. Haylen J in Inspector Farrell v The Salvation Army (NSW) Property Trust [2003] NSWIRComm 229 considered a circumstance where there had been delay due to an inquest then a following Coroner's Report before charges were laid. He rejected an application of the principle. 35 I do not believe the principle should be narrowed to apply only to what could or should be called an unusual case. Rather, in the use of a court's discretion, the principle applies where there is delay between the offence and sentencing and where that delay reveals an unfair circumstance. I do not accept the court should attempt to categorise the circumstance of a breach as an unusual case before the application of a principle. 36 The individual defendant, it was submitted, has been left in uncertain suspense for a period of nearly three years and had demonstrated rehabilitation during the intervening period. Mr Habgood has clearly felt stress at being charged with a criminal offence because of his failure to ensure safe working procedures by a company over whom he was a working director. In the application of the law in NSW, he has breached the Occupational Health and Safety Act, 2000. Through an ever widening range of legislative provisions regulating the conduct of corporations, directors of the corporation have been called to answer before courts for the activities of the corporation. Directors are now being held responsible for the conduct of the corporation over which they, through their status, that is, through their position as a "director" over the activities of a corporation, have control. 37 I find no unfairness nor delay in bringing this prosecution to the court for sentence, nor in the time it came to hearing within the course of court's listings, was there delay. An Improvement Notice was issued, there was an investigation conducted into the breach, there had to be the approved redesign of the work method statements into formal procedures. The defendants took some months to seek advice as to entering pleas of guilty. In such a circumstance, I do not accept there has been an element of delay in this prosecution, such as to find an unfairness sufficient to attract mitigation in penalty for the individual defendant. 38 The maximum penalty is $550,000 for the corporate defendant and $55,000 for the individual defendant. 39 Taking into account the subjective features of the offence but giving weight to the objective features of the circumstances revealed, I find the defendants guilty. 40 The corporate defendant is to be fined in the sum of $80,000. 41 The individual defendant is to be fined in the sum of $15,000. 42 As agreed, the defendants shall pay the prosecutor's costs as agreed or assessed.

Orders 43 The court makes the following orders: 1. In Matter No IRC 1921 of 2008, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales.

3. In Matter No IRC 1922 of 2008, I find the defendant guilty of the offence as charged.

4. The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales.

5. The defendants shall pay the costs of the prosecutor as agreed or assessed.

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