Inspector Walker v Tomago Aluminium Co Pty Ltd

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 2000

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm at 182 Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, 27 April 2004, matter No 5351 of 2003) Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 R v Johnson [2004] NSWCCA 76 R v Previtera (1997) 94 A Crim R 76 R v Shankley [2003] NSWCCA 253 R v Veen (No 2) (1998) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33

PROSECUTOR Ms P McDonald Solicitor: Ms R Panagoda WorkCover Authority of New Sout Wales LEGAL REPRESENTATIVES: DEFENDANT Mr H J Dixon SC with Mr T Saunders of counsel Solicitor: Mr P Arthur Allens Arthur Robinson

INSPECTOR JOANNE WALKER v TOMAGO ALUMINIUM CO PTY LTD

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

1 Tomago Aluminium Co Pty Ltd ("the defendant") has pleaded guilty to a breach of s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). This judgment concerns the penalty to be imposed for that offence. 2 The defendant operates an aluminium smelter at its premises on Tomago Road, Tomago, New South Wales. On 14 February 2004, Mr N O'Connell, an employee of the defendant, sustained crush injuries when he was trapped between a suspended moving anode trolley and a fixed metal platform (known as the reject table), which was located in the cooling tunnel area of the Paste Plant within the Rodded Anodes Business Unit at the smelter. Mr O'Connell died on 25 February 2004, as a result of his injuries. 3 The charge under s 8(1) was that the defendant: FAILED TO Ensure the health and safety and welfare at work of all its employees, in particular Neil Maxwell O'Connell, contrary to section 8(1) of the Occupational Health and Safety Act, 2000. 4 The particulars of the charge are: 1. The defendant failed to ensure that the overhead power and free conveyor system in the cooling tunnel area of the paste plant in the Rodded Anodes Business Unit, (conveyor system) was properly guarded to prevent employees coming into contact with the moving parts of the conveyor system. 2. The defendant failed to ensure that the systems of work for the removal of reject and oversized anodes on the conveyor system were safe and without risks to health. 3. The defendant failed to ensure that employees isolated the overhead conveyor motor before performing the work of removing the reject and oversized anodes. 4. As a result of the said failure O'Connell was placed at risk of injury and in fact suffered a fatal injury. 5 The prosecutor tendered an agreed statement of facts. Annexed to the statement was a memorandum from the Carbon Plant Business Unit Leader to all Rodded Anodes Employees dated 6 February 2004, advising that the company intended to commence production of new green anodes, which were approximately 100mm longer and 80kg heavier than the standard anodes. Employees were encouraged, if they needed to manually intervene with the new anodes, to take extra care before commencing. Also annexed to the statement was the isolation procedures intervention matrix, as revised at 4 January 2002. 6 The prosecutor also tendered a factual inspection report by Inspector I Batty dated 17 February 2004. 52 colour photographs taken between 14 February 2004 and 9 July 2004 showing an anode carrier, the hydraulic reject pusher with reject table, diagram of main isolation points, permanently fixed physical barrier fence guarding and the site of the accident. There was a sketch (not to scale) of the accident site and the defendant's prior convictions which showed four prior convictions. 7 The prosecutor also provided the Court with a schedule of judgments involving moving conveyor lines or systems, and the wording of a s 115 order. 8 The agreed statement of facts excluding formal parts provided the following information: Rodded Anodes Business Unity and Paste Plant operations 10. The Rodded Anodes Business Unit (RABU) is the part of the Smelter which makes anodes for use in the aluminium smelting process. 11. The RABU comprises the Paste Plant, Anode Storage Handling Area (ASH) and Bake Ovens. Anodes are manufactured in the Paste Plant, then stored in the ASH area before being sent to the Bake Ovens. Anodes are hardened or baked in one of the two Bake Ovens, after which they are transferred to the Rod Shop, where hardened steel rods are inserted into the anodes. Once fitted with a rod, each anode is ready to be transported to the potlines for use in the smelting process. 12. Anodes are principally made from a combination of petroleum coke and liquid pitch. The petroleum coke is crushed and combined with the liquid pitch to form a thick paste, which is moulded into a specific block-like shape by one of two vibro-compactors. Each anode weighs approximately 1.3 tonnes. 13. Once moulded, each anode is transferred onto a trolley. Trolleys are suspended from an overhead power and free conveyor system, which is described below. 14. Once transferred onto a trolley, each anode must be cooled. In order to do this, the Conveyor System transports each anode on its trolley through two cooling tunnels. At various stages along the Conveyor System, there are sensors, which weigh the anode and detect whether it is the correct size and shape. Anodes, which do not conform to the weight, size and shape specifications cannot be used in the smelting process and are automatically rejected by the Conveyor System. The Overhead Power and Free Conveyor System 15. The overhead Power and Free Conveyor System (Conveyor System) was designed by Jervis B Webb Company and installed at the Smelter by the Conveyor Company of Australia Pty Limited in approximately 1983. 16. The Conveyor System was designated as a 4/6/6 type Power and Free (Wide Wing Conveyor - Conveyor No. 3220-61390). It involves dual trolley carriers, which transport anodes on suspended trays (trolleys) around the Paste Plant. Trolleys run on a free track and can engage and disengage on a continually moving overhead powered chain. 17. The Conveyor System consists of: a) an overhead conveyor of approximately 360 metres comprising; i. a free or unpowered track (Free Track); which is located below and parallel to ii. a mechanised chain (Powered Chain); b) 104 disengagable trolleys each equipped with an anode carrying tray (Trolley). Each Trolley weighs approximately 420 kgs (tare); c) loading station at each of two vibro compactors; d) one anode weighing station; e) one density control station; f) all electrical equipment for Pro-Logic Control of the Conveyor System; and g) a Radio Frequency (RF ) tagging system. 18. The overhead conveyor moves at a rate of approximately 13.55 metres per minute, which is approximately the speed of a slow walking pace. Trolleys 19. In order for a Trolley to move around the Plant, it must either engage directly with the Powered Chain or with another Trolley, which has engaged with the Powered Chain. In many respects, the movement of the Trolleys around the Conveyor System is similar to that of a train in that only the front carriage of the train is powered and it draws the subsequent carriages along the Free Track after it. 20. In practice, the first Trolley attaches to the Powered Chain by way of a device which consists of an operating link (or 'duck bill') and 'retractable dog', both of which are located on the Trolley's leading edge. When the duck bill is lowered (by gravity), the retractable dog is raised and a connection is made with the Powered Chain. Once connected to the Powered Chain, the Trolley moves along the Conveyor System. 21. At the rear of each Trolley, there is a 'cam tail' (Cam). The Cam of the first Trolley can attach to the duck bill on the leading edge of the next Trolley and so on. When the duck bill makes contact with the Cam, the duck bill is raised, which forces the retractable dog on that Trolley down. This causes the second Trolley to disengage with the Powered Chain. The result of this is that the Trolleys become joined to each other but only the first Trolley is engaged with the Powered Chain. 22. The first Trolley is powered by the Powered Chain when it makes contact with a 'pusher dog'; which is attached to the mechanical drive shaft of the Powered Chain. Pusher dogs are located at regular intervals along the Powered Chain. As the Powered Chain moves, the pusher dogs travel around the Plant with it. A pusher dog will make the contact with the retractable dog of the first Trolley as it passes that Trolley. Stops 23. There area number of 'stops' that are located at various points along the Free Track. Each stop is an air operated device which, when closed, places a blade in the path of a Trolley to prevent it from moving forward. The blade causes the dog on the front Trolley to retract, which releases it from contact with the pusher dog on the Powered Chain. Opening the stop causes the blade to retract from the path of the Trolley and allows the Trolley to re-engage with the next available pusher dog on the Powered Chain. The Trolley then moves forward. The stops can be manually closed or opened at local push button stations which are positioned around the Plant. Anti-rollback device 24. Trolleys are prevented from moving backwards along the Conveyor System by a series of anti-rollback devices, which are positioned at various points along the Free Track. Each anti-rollback device comprises a small metal bar or latch which hangs below the Free Track at an oblique angle. When a Trolley moves along the Conveyor System in the direction of the Powered Chain, the Trolley pushes against the device and causes it to flatten and become flush with the Free Track. The Trolley is then able to move past the device. However, if a Trolley rolls against the direction in which the Powered Chain moves, it becomes jammed against the device and is stopped. An anti-roll back device can be de­activated as to allow a Trolley to move backwards by manually depressing (ie, pushing upwards) the latch. Quality Control 25. There is an electronic grading and sizing system for the purpose of ensuring product quality measure the height and weight of each anode. The grading and sizing for each anode is recorded on a programmable radio frequency (RF) tag, which is mounted on each Trolley. The information contained on the RF tag is read by the electronic equipment, which forms part of the overall Conveyor System. This information. allows the Conveyor System to identify which anodes meet the quality standards and which ones do not. 26. After passing through two cooling tunnels, each Trolley is stopped at Stop 16. 27. By this point, each anode has either been identified as a 'good' anode (that is, an anode which has met the quality control standards) or as a 'reject' anode. If it is a good anode, the Conveyor System directs it onto the 'green line' at Stop 17. If an anode has been rejected, the Conveyor System directs it onto the 'reject line' at Stop 19. The process of directing each anode onto the green line or reject line is automated and there is usually no need for human intervention. Green line and reject line 28. The green line and reject line are situated at right angles to the Conveyor System. In this context, 'line' means a ground-mounted conveyor belt. In the case of the green line, the conveyor is mechanised; and in the case of the reject line; gravity causes the reject anodes to run along it (downhill). Green line 29. A radio frequency antenna (RF antenna) and an ultra sonic height-sensing device are permanently fixed above the 'green line' unload station at Stop 17. 30. As the Trolley arrives at the green line, the RF Antenna reads the information contained on the tag mounted on the Trolley. As a secondary measure, the ultra sonic height-sensing device also measures the height of each anode, 31. If the anode is acceptable, it is pushed onto the green line by a hydraulic ram (the green line pusher). 32. The green line pushed works by extending from its position at the top of the green line to push the anode off the Trolley and onto the line itself. The green line pusher than (sic) retracts and is ready to repeat the process with the first good anode. 33. If an anode has been pushed onto the green line, it is moved a distance of approximately 2 metres to a 'turn over device'. The turnover device turns the anode onto its side to facilitate its handling in the ASH area. Reject line 34. In the event that the sensing device at Stop 17 identifies that an anode does not meet the required quality standard, the Trolley is carried past the green line to the junction of the Conveyor System and the reject line (Stop 19). The distance between the green line and reject line is approximately 4 metres. 35. Once at Stop 19, a second hydraulic ram (in this case, the reject line pusher), which is located at the top of the reject line, pushes the reject anode off its Trolley and onto the reject line itself. An anode which has been pushed onto the reject line rolls along the line to a holding area. Reject anodes are crushed and recycled through the Plant. Events leading up to the incident 36. Prior to the incident, the Smelter was undergoing an upgrade known as the 'AP22 Project' (the Project). Essentially, the Project involved increasing the Smelter's overall production. The Project required the integration of changes to plant and equipment in the RABU in early 2003 and February 2004 to accommodate the production of larger anodes. 37. On 6 February 2004, the Paste Plant commenced the production of larger anodes. These anodes were approximately 100 mm longer and 80 kg heavier than the anodes which had previously been produced. 38. On 6 February 2004, Mr Gawthrop, Rodded Anodes Business Unit Leader, forwarded a memo to all RABU employees concerning the manual handling of anodes. A copy of that memo is annexed and marked 'A'. 39. At Paste Plant No. 1 (in the transfer car area) there is an item of plant referred to as the 'chandler baffle'. A chandler baffle is an oscillating blade which is designed to ensure that the paste which is poured into each mould is spread evenly from back to front. In the days before the incident there had been a defect with the chandler baffle, causing it to be less effective. Details of incident on 14 February 2004 40. At approximately 7 am on 14 February 2004, five of the defendant's employees (C Crew) commenced work on the day shift in the Paste Plant. On that shift, C Crew comprised: a. Neil Maxwell O'Connell (Mr O'Connell), who was an experienced Paste Plant Operator, having been employed by the defendant in that position since 1982. Mr O'Connell was the operator of Paste Plant 1 at the time of the incident; b. Edward John Bingham (Mr Bingham), who was an experience (sic) Paste Plant Operator, having been employed by the defendant in that position since March 1990. Mr Bingham was acting as 'third man' (that is, providing additional assistance in Paste Plants 1 and 2 as required) at the time of the incident; c. Lance Richard Skinner (Mr Skinner), who was an experienced Paste Plant Operator, having been employed by the defendant in that position since 1999 and otherwise in the Rodded Anodes since 1997. Mr Skinner was the operator of Paste Plant 2 at the time of the incident; d. Joseph Edward Fitzpatrick (Mr Fitzpatrick), who was an experienced Senior Paste Plant Controller, having been employed by the defendant in that position since 1984. Mr Fitzpatrick was the Senior Paste Plant Controller at the time of the incident; and e. Mark Alan Joseph Westbury (Mr Westbury), who was an experienced Team Leader in the Rodded Anodes, having been employed by the defendant in that position since 2002. 41. In addition to C Crew: f. Scott Hargreaves Gawthrop (Mr Gawthrop), was the Business Unit Leader of the Rodded Anodes, having been employed by the defendant in that position since 2002 and otherwise at the Smelter since 1983. Mr Gawthrop was not duty at the time of the incident; and g. Troy Maurice Evans (Mr Evans) was a contractor who was hired by the defendant through Chandler MacLeod / Ready Workforce. Mr Evans was working as an Assistant Anode Storage Handler in the ASH area for Bake Oven No 2 at the Smelter at the time of the incident. 42. Prior to the incident, Mr Evans, who was working the ASH area, observed that an oversized anode (that is, an anode that was too tall), which should have been rejected by the Conveyor System, had been pushed onto the green line rather than the reject line, and was jammed in the turnover device (Defective Anode). 43. In addition to the Defective Anode becoming jammed in the turnover device, two good anodes had, by that time,. been pushed onto the green line and were behind the Defective Anode (that is, between the Defective Anode and Stop 16). 44. The Defective Anode had been pushed onto the green fine rather than the reject line because both of the defendant's anode height and weight detectors had failed. 45. Mr Evans informed Mr Skinner of the problem via two-way radio and Mr Skinner went to investigate the Defective Anode. Mr Skinner attempted to clear the green line by using the green line pusher to force the Defective Anode through the turnover device, but this was unsuccessful. 46. Mr Skinner returned to the Control Room of the Paste Plant and notified Mr Fitzpatrick of the problem via two way radio. At the time, Mr Fitzpatrick was with Mr Westbury in a different part of the Plant. Mr Fitzpatrick instructed Mr Skinner to notify Mr O'Connell and Mr Bingham of the problem. At that time, Mr Westbury indicated that he would investigate the Defective Anode shortly, as he continued on his supervisory rounds of the Rodded Anodes Business Unit. 47. Mr Skinner notified Mr Bingham and Mr O'Connell as request (sic) and they subsequently went to investigate the problem. Mr O'Connell and Mr Bingham arrived that the green line and turnover device and started to dear the line prior to the arrival of Mr Westbury. Steps taken by Mr O'Connell and Mr Bingham 48. The only practical way of clearing the Defective Anode from the turnover device and to move it to the reject line was to intervene manually on the Conveyor System in the vicinity of the green line and reject line. Mr O'Connell and Mr Bingham needed to manoeuvre the Defective Anode and the two good anodes back onto Trolleys so that they could be moved from the green line to the reject line. The only way that this could be done was to: a) bring an empty Trolley to Stop 16 and lever the nearest (good) anode onto the Trolley; then b) move that Trolley to the reject tine at Stop 19 and push the anode onto the 'reject line using the reject line pusher; then c) return the Trolley to Stop 16 so that the process could be repeated for the second good anode and finally the Defective Anode. 49. Mr O'Connell and Mr Bingham set about clearing the green line and turnover device in this way. 50. Consistent with the way Mr Bingham had performed this task in the past, the overhead Chain was not isolated prior to accessing the area. 51. However, contrary to the defendant's isolation procedures (isolation Matrix), Mr O'Connell and Mr Bingham did not isolate the Powered Chain before accessing the Cooling Tunnel and commencing their manual intervention. To 'isolate' the Powered Chain means to stop it moving by turning it off. A copy of the Isolation Matrix is annexed and marked 'B'. 52. To remove the first (good) anode, Mr Bingham manually closed Stop 16 via a local control push button station. This stopped any other Trolleys from moving out of the cooling tunnel and into the area in which Mr O'Connell and Mr Bingham were working. Mr O'Connell and Mr Bingham then positioned themselves on either side of the first good anode and used a crow bar to move it onto an empty Trolley positioned at Stop 17. 53. Mr Bingham then walked out of the southern side of the building, around the end of the reject conveyor and back into the building to position himself near to Stop 19. Stop 19 is located at the intersection of the Free Track and the reject line. Mr Bingham caused Stop 19 to be closed and Mr O'Connell caused Stop 17 to be opened by operating the local control stations respectively. By opening Stop 17, the next available pusher dog on the Powered Chain engaged with the Trolley which was carrying the first good anode and transported it to Stop 19. The closure of Stop 19 ensured that the Trolley did not move beyond that point. The first good anode was pushed from its Trolley onto the reject line by the reject line pusher, and it rolled along the reject line to the holding area outside the building as intended. 54. Mr O'Connell then operated the same local control station again to cause the reject line pusher to retract it to its original position. The empty Trolley moved a distance of approximately one metre from the reject table, against the normal flow of the Powered Chain, toward the green line. 55. Mr O'Connell then positioned himself on the northern side of the empty Trolley. Mr Bingham walked around the end of the reject conveyor and, on his way, picked up a broom handle which he knew would be needed to de-activate the anti-roll back device and the Free Track for the purpose of moving the Trolley back to Stop 17. Mr Bingham positioned himself on the south Western corner of the empty Trolley. Together, Mr O'Connell and Mr Bingham moved the empty Trolley in a westerly direction against the direction of the Powered Chain until the Trolley struck an anti-roll back device at Stop 18. 56. To move the Trolley back past the anti-roll back device, it was necessary for Mr Bingham to cause the device (being a small metal bar which hung down from the Free Track) to become flush with the Free Track. The only way to achieve this was to depress the device (ie, push it upwards). There was no specific device to undertake this task and Mr Bingham used the broom handle he had previously collected. Mr Bingham caused the device to flatten and become flush with the Free Track and the Trolley moved back towards the green line as intended. 57. However, while doing this, the Trolley engaged with the Powered Chain and Mr Bingham realised that, as a result of this, the Trolley had begun to move towards the reject line (ie in the opposite direction to where it was intended to be moved). However, given that Mr Bingham was looking upwards while he was attempting to hold up the anti-roll back device with the broom handle, he did not notice that Mr O'Connell had moved from the side of the Trolley and was standing in its path (that (s, between the Trolley and the reject table). 58. It is not known why Mr O'Connell stepped into the path of the moving Trolley at that time. It is also not known why Mr O'Connell did not depress the duck-bill of the Trolley to prevent it from making contact with the pusher dog on the Powered Chain. 59. As a result, Mr O'Connell became trapped between the Trolley and the reject table at Stop 19. 60. Mr Bingham, on realising what was happening, used both hands to try to hold the Trolley away from Mr O'Connell by raising it to about his chest or shoulder height. Despite his attempts, Mr Bingham could not prevent the Trolley from trapping Mr O'Connell against the reject table. 61. As this was occurring, Mr Westbury arrived at the scene, having entered the area through the south­western opening of the building near to the green line pusher. Mr Westbury observed that Mr O'Connell was trapped by the Trolley. 62. Within a few seconds of his arrival, Mr Westbury hit the emergency stop button, which caused the Powered Chain to stop. This emergency stop button was located adjacent to the green line pusher. The Trolley immediately moved back (towards the green line) a distance of about one metre, which allowed Mr O'Connell to be released. 63. Mr Westbury used channel 3 of Mr Evans' two-way radio to contact the smelter's security office and requested urgent outside medical assistance. Security directed Michael Lewis (Fire and Emergency Co­ordinator) to the scene. First aid was rendered by the defendant's first aid officers prior to the arrival of the NSW Ambulance Service. 64. NSW Ambulance arrived on the scene at approximately 4.16 pm and departed at approximately 4.40pm, transporting Mr O'Connell to the John Hunter Hospital. Details of the systems of work prior to incident Guarding of Conveyor System 65. At the time of the incident, fencing on the southern and northern sides of the cooling tunnel area of the Paste Plant consisted of a permanently fixed metal post and rail fence/handrail approximately one metre high with a mid-rail positioned approximately 470 mm above ground level, with a number of open sections to facilitate access and egress. A metal chain could be placed across the open sections of the fence for the purpose of preventing unauthorised access. On the external southern side of the building, there are two openings allowing access/egress to the cooling tunnel area and a walkway adjacent to Stop 17. Standard Operating Procedures in the Rodded Anodes Business Unit 66. Prior to the incident, the defendant had a documented system in place in relation to isolation procedures for the Conveyor System (isolation Matrix). This document outlines the areas which are required to be isolated for a number of interventions in the Cooling Tunnel. The Isolation Matrix stipulates the isolation of the overhead conveyor motor is required before general access to the Cooling Tunnel. 67. The system of work utilised by Mr O'Connell and Mr Bingham in the events leading up to the incident was inconsistent with the requirements of the defendant's Isolation Matrix. 68. The Isolation Matrix stipulates that the isolation procedures for intervening in the Paste Plant includes, but is not limited to: a) in all cases, the standard isolation method prior to carrying out the manual intervention is to: (i) isolate; then (ii) attach a danger tag; then (iii) test isolation. b) area access isolation is required when working in any of the areas listed in the Isolation Matrix. c) in the case of an anode jammed at Stop 16, employees are to isolate stops 16/17. d) in the case of general access to the cooling tunnel, employees are to isolate: (i) the overhead conveyor motor; (ii) 'Cooling Tunnel No. 1 Pump No. 2 Isolator'; (iii) 'Cooling Tunnel No. 1 Pump No. 1 Isolator'; and (iv) 'Cooling Runnel (sic) No. 2 Spray Pump Motor Isolator'. e) for activities not listed on the isolation Matrix, 'full isolation is required unless otherwise approved by your relevant foreman' 69 The defendant also required its employees to implement the 'danger tag' system whenever a piece of equipment was isolated for the purpose of ensuring that no person would reactivate the equipment while the tag was in place. This requirement was reflected in the isolation Matrix under the heading of 'Job Procedure'. 70. At the time of the incident, the defendant had in operation a Job Safety Analysis scheme, whereby employees would undertake a risk assessment before commencing to perform a task. Mr O'Connell had completed JSA training on 13 January 2004. Mr Bingham had not been trained in the JSA system prior to the incident. 71. Neither Mr O'Connell nor Mr Bingham completed a JSA for the work activities they were undertaking leading up to the incident. Practices of Paste Plant Operators in Cooling Tunnel Area 72. Contrary to the requirement that the conveyor system be isolated prior to entry into the Cooling Tunnel (as set out in the Isolation Matrix), at the time of the incident, it was a common practice for Plant Operators to enter the Cooling Tunnel for the purpose of 'manipulating' Trolleys. In this context 'manipulate' means to assist a Trolley to continue to move in the same direction as the flow of the Powered Chain. This common practice was known to supervisors and management. 73. Typically, such `manipulation' would occur when a Trolley failed to engage with the Powered Chain (in which case an Operator may have manually depressed the duckbill on that Trolley to connect the Trolley to the Powered Chain) or when a gate on the Free Track failed to open (in which case, an Operator may have manually depressed the gate to open it so that a Trolley could pass through the gate and into Cooling Tunnel No. 1). 74. However, it was not a common practice for Plant Operators to attempt to cause a Trolley to move against the flow of the Powered Chain without first isolating the Conveyor System. Mr O'Connell's and Mr Bingham's practice of undertaking this type. of intervention was singular to them and not known to, or in any way approved of, by the management of the defendant, including the Team Leader of C Crew. Steps taken by the defendant to improve safety after the incident 75. As an immediate interim safety measure, the defendant erected a wire mesh fence to prevent access to the Cooling Tunnel and signage which stated that no person was to access the cooling tunnel area without a completed job safety analysis, authorised by the Carbon Plant Foreman and isolated following the correct standard operating procedure. 76. By 17 February 2004, the defendant had established a task force to review the operations in the Paste Plant. The task force identified a number of issues and recommended actions during the period 17 February 2004 to 19 March 2004. 77. A further revised access procedure was developed on the 18 February 2004. 78. The defendant developed an Action Plan in response to WorkCover Improvement Notices issued on 19 February 2004. The Action Plan details the immediate response by the defendant following the incident and then outlines the steps that it intended to (and did) take to improve safety over the medium and long term. Implementation of the Action Plan 79. In order to implement the Action Plan, the defendant undertook the measures which are set out below. (a) The defendant retained the services of an independent external safety and engineering consultant to assist with the safety review and implementation of the Action Plan; (b) The defendant networked with other plants and industries for the purpose of inspecting their overhead conveyor systems and safeguarding in general; (c) During the period between February 2004 and December 2004 permanent perimeter guarding to the full length of the Conveyor System was designed and installed to prevent unauthorised access to the Cooling Tunnel and uncontrolled 'live' operator interventions. The perimeter guarding has been designed with particular access provision via sixteen controlled gates. Key and interlock logic has been implemented to allow controlled, authorised access to the Cooling Tunnel and to ensure the safety of people required to undertake existing work activities; (d) a specific tool was designed which can be inserted into the duckbill to hold it open; (e) A review of operating procedures and practices was carried out which identified 51 required interventions, for which a new and/or revised JSA and SOP were developed and implemented in consultation with relevant personnel; (f) A review of preventative maintenance schedules and practices was carried out during March and May 2004. Implementation of the improved maintenance practices (in accordance with Phase 2 of the Action Plan) was completed in August 2004. The preventative maintenance schedule and practices have improved the reliability of anode measurement devices and the RF tagging system, reducing the likelihood of a reject anode being pushed onto the green line. In the event that a large anode is pushed onto the green line, a physical gauge that will jam the anode before if gets fully off the Trolley has been installed immediately adjacent to Stop 17. This gauge ensures that in the. event of a jam only one anode need be dealt at a time, (g) The defendant carried out a review of emergency stops and isolation facilities in the Paste Plant, including signage. All emergency stops were replaced with new 60mm diameter units; (h) A Competency Development Plan (CDP) for the operation of the Cooling Tunnel was developed by the defendant, authorised by management and issued to operators. All supervisors and operators have now completed the CDP training; (i) The Isolation Matrix for interventions requiring isolation of the Conveyor System was revised on 28 May 2004; (j) A major plan was designed after the incident which focussed on compliance with Regulations, safeguarding, risk assessment and behavioural compliance; and (k) A project titled the 'Man Machine Interface Project' (MMIP) was launched by the defendant following the incident to review the entire Smelter for the purpose of identifying and controlling hazards associated with the interface of personnel with equipment. As a result of the MMIP and WorkCover Improvement Notices, entry into the Cooling Tunnel is now restricted by the installation of full perimeter guarding. The Installation of an isolation and interlocking system which allows for safe entry into the area after automated isolations have been completed. Co-operation with WorkCover 80. The defendant has co-operated with WorkCover in relation to its investigation into the incident. 9 The defendant tendered and read an affidavit of Arthur Gilbert Hunt. Mr Hunt was not required for cross-examination. The defendant also tendered a photograph showing an overview of the accident scene. 10 Mr Hunt is employed as the Business Unit Leader Liquid Metal, with the defendant. Prior to this position, he held the position of Business Unit Leader for the Rodded Anodes Business Unit ("RABU") and was in that role at the time of the accident. Mr Hunt described his duties as Business Unit Leader of the RABU, the production of aluminium and the manufacture of carbon anodes, stating that the defendant's Paste Plant manufactures approximately 200,000 anodes per year. As a result of extensions to the aluminium smelter, which was built in 1981, it now has a capacity to produce 460,000 tonnes of aluminium. 11 Mr Hunt stated that the defendant currently has approximately 1,000 employees and utilises the services provided by a large number of local contractors. It is one of the largest employers in the Newcastle/Hunter region. 12 Mr Hunt described the procedures for entering the Cooling Tunnel at the time of the incident as follows: 32. At the time of the incident, all employees were required to isolate the overhead conveyor in the Cooling Tunnel area of the Paste Plant prior to attempting to undertake any manual intervention in that area. Such interventions included attempting to clear the conveyor system of a blockage, such as that caused by an oversized anode becoming jammed in the turnover device on the green line in circumstances where an employee needed to manipulate trolleys against the flow of the overhead powered chain. 33. The Isolation Matrix, which was clearly displayed at various locations around the Paste Plant, including in the vicinity of Stop 19, plainly stated that equipment was to be isolated in the circumstances described in paragraph 32 above. Annexed to this affidavit and marked 'B' is a copy of the Isolation Matrix which applied at the time of the incident and was displayed in the vicinity of Stop 19 of the Paste Plant. 13 In referring to the improvements introduced by the defendant since the incident, as set out in paragraphs 75 - 79 of the agreed statement of facts, Mr Hunt stated that these improvements had cost in excess of $20 million and had taken three years to implement. It was common ground that the specific improvements introduced at the accident site had cost approximately $1.2 million. 14 Mr Hunt then set out the extensive assistance provided to Mr O'Connell's family. This included a cash payment of $25,000 soon after the incident, which was in conjunction with the provision of a further $25,000 from the Tomago employees; all costs relating to Mr O'Connell's hospitalisation, including emergency accommodation for family members, meals, psychological and counselling support; all costs relating to Mr O'Connell's funeral; assistance in securing an apprenticeship for Mr O'Connell's son; provisional ongoing counselling services to Mrs O'Connell and her children and continual telephone contact with them by members of senior management; assistance with workers' compensation insurer and the presentation of a memorial shield to commemorate Mr O'Connell. 15 Mr Hunt described the installation of the overhead conveyor system in the Paste Plant in 1991. He stated that on 9 September 1992, a senior Inspector of the WorkCover Authority of NSW inspected the conveyor and issued an Inspector's Notice. The notice required certain measures to be taken to meet safety standards, including securely fencing all nip points and installing handrailing to prevent normal access into the area swept by the suspended anodes, as they were transported on the conveyor. 16 Mr Hunt described the occupational health and safety management at the defendant, which is comprised of a number of separate but related safety programs. These include standard operating procedures ("SOPs"), which are prepared in consultation with the defendant's operational employees. Following the incident, the SOPs were comprehensively reviewed and in many instances, new procedures documented. Copies of the many new SOPs were annexed to Mr Hunt's affidavit. All employees undergo induction training when they commence employment with the defendant. Ongoing training is then provided by means of monthly safety meetings and a competency development program. One module in the competency development program is focused on the correct method of isolating equipment. 17 Since 1997, management have been required to undertake a number of safety observations each year. This requires management to visit the production areas and talk to operators about safety issues. 18 In 1999, the defendant developed a hazard management system. This system requires every employee to record any hazard in his or her hazard notebook so that corrective action is taken. A permit to work system was introduced in early 2000 to ensure the safety of contractors working at the site. A contractor must seek written approval to perform any work, in any area, at the defendant's site. A risk assessment is an integral part of the process by which permission is provided. 19 Towards the end of 2000, a job safety analysis ("JSA") initiative was introduced. A similar system, known as ActSafe was introduced from September 2001, for all operators, including those in the Rodded Anodes Business Unit. This system was ultimately replaced in January 2004 by the JSA. Employees are required under the JSA to record risks associated with the following tasks: any activity involving isolation; manual handling activities; any task involving the use of lifting equipment and any non-routine task, such as one which the employee has not undertaken for some time (more than one or two months) or a task for which there is no SOP. The JSA, which applied to all Plant Service employees, was designed to ensure employees undertake risk assessments before commencing a task. An employee must carry a pocket JSA notebook at all times and prior to commencing a task, must list any possible risks in the notebook, together with the control measures that are used to reduce or remove the risks. 20 Mr Hunt stated that Mr O'Connell was trained in the use of JSAs on 13 January 2004. A copy of Mr O'Connell's training records was annexed. A Safety Action Plan was introduced for each Business Unit in early 2002. The Plan identifies the top 10 hazards for that Business Unit and how those hazards will be addressed. The safety performance of each Business Unit is assessed each quarter against its Safety Action Plan. Regular safety audits were also introduced in mid 2001. 21 A scheme known as "Safety. Always Your Choice" was introduced in late 2002. This program was introduced to reinforce the role that each employee has to play in their own safety and the safety of the people with whom they work. The Safe Start program was introduced in late 2002. This program requires team leaders to meet with their crew members during each shift to discuss compliance with the ActSafe Program, the safety results from the previous shift, how the tasks are to be undertaken on that day could be performed safely and any injuries or near-misses of which the team leader is aware, both at the defendant's plant and any other aluminium smelter around the world. 22 Mr Hunt stated that safety meetings are held with each crew of production employees for one to two hours each month. The purpose of these meetings is to review the safety performance of the Plant. Department and crew; review the Business Unit Safety Action Plan to educate the employees about safety-related issues. A serious incident review meeting is held each week to review the investigations and action plans following any serious accidents or near misses. The CEO, Production Manager, Service Manager, Health and Safety Manager and the Chairman of the Occupational Health and Safety Committee attend these reviews. 23 The defendant has acquired ISO accreditation in respect of its safety systems. 24 Mr Hunt gave evidence that the major safety initiatives at the defendant's plant are currently aimed at significant improvement in four key areas, being: (a) an audit has been conducted of plant across the site to identify man/machine interface hazards which may pose a risk to employees. These risks are assessed and recorded in a risk register. Actions are then taken according to the magnitude of risk, with the aim of reducing risks through the introduction of appropriate controls. These projects are the priority for capital expenditure at the site; (b) minimisation of risks in identified specific risk areas through the use of improvement teams sponsored by a member of the site's senior management team. These teams develop and implement best practice solutions. For example, Tomago's CEO is the sponsor of the Crisis Management/Emergency Preparedness team. The Traffic Management team is sponsored by the site's Production Manager. The Permit to Work/Isolation and Contractor Safety Management team is sponsored by the site's Services Manager; (c) enhancement of the current TAC Safety Management System. As part of this process, Tomago has taken on board the ALCAN EH&S First Safety Management System, adapting it so as to ensure that it conforms with applicable legislation, Australian Standards, and Codes of Practice; and (d) continuation of the Business Unit safety planning process. 25 Mr Hunt stated that there are two main categories of expenditure on safety - operating expenditure and capital expenditure. Mr Hunt set out this expenditure which relates to calendar years as follows: Safety operating expenditure (a) The information supplied below relates to the 2003 to 2006 calendar years. Operating expenditure covers annual spend on items such as the purchase and maintenance of Personal Protective Equipment, safety consultants, and the wages & salary cost of employees involved in safety. Actual Y/E Actual Y/E Actual Y/E Actual Y/E 31/12/03 31/12/04 31/12/05 31/12/06 Safety Coordinators $0.594m $0.619m $0.645m $0.528m Safety Health & Hygiene Department Costs $1.037m $1.076m $1.433m $1.458m Supplies and expenses - (PPE etc) $1.968m $2.289m $2.472m $2,501m Total $3.599m $3.984 $4,550m $4,487m

(b) In addition, Tomago expends considerable amounts on safety related training and other safety related activities. This expenditure is not identified separately. Safety capital expenditure (c) A budget for capital expenditure on safety projects is approved in August or September each year. Because the type of capital expenditure varies significantly from year to year, proposed new projects are identified individually at this time. (d) The nature of capital projects is that, because of the lead times necessary to design, build and commission capital projects, a job that is approved in August or September in one year is normally designed and constructed in the following year. However, particularly in the case of large projects, completion of the project may be spread over more than one year. (e) Approved capital expenditure on safety projects for the past four years was as follows: Y/E 31/12/03 Y/E 31/12/04 Y/E 31/12/05 Y/E 21/12/06 $2.86m $10.50m $20.86m $8.77m

26 Mr Hunt stated that the defendant is a community-focused operation. Since 2000, it has joined OneSteel Market Mills ("OSMM") in developing a series of posters that promote workplace safety over the Christmas-New year holiday period. These posters are distributed to more than 170 businesses in the Hunter region. The defendant's aim with this project is to share its safety principles with other businesses and industries, so that safety is at the forefront of employees' minds at a time of the year when it is easy to be distracted. A full-page press advertisement is placed annually in the Newcastle Herald to ensure the campaign's exposure in the general community. 27 Since 1999, the defendant has produced a calendar that displays artwork from the children of employees. The aim of the calendar is to expand the focus on safety from the workplace to home and encourage a greater understanding of health and safety issues in schools and in the homes of employees. 28 The defendant annually donates $75,000 to support local charities, sporting and community groups. These charities include the Hunter Valley Research Foundation; the Hunter Medical Research Institute; TAFE Hunter Institute; Hunter Region Botanic Gardens; Ronald McDonald House; Port Stephens Council School Environment Awards and Raymond Terrace Art Show. 29 Employees of the defendant take part in an Out of Pay scheme that is matched dollar for dollar by the defendant. Six charities are short-listed for support each year. Since 1986, more than $315,000 has been raised for charities in the Hunter region. The defendant also provides best practice support to its employees and their immediate families in a range of areas including drug and alcohol problems; divorce and relationships; career development; redundancy re-training and financial management support. 30 Mr Hunt, on behalf of the defendant, expressed his deepest regret and remorse for the incident which resulted in the loss of Mr O'Connell's life and the impact that it has had on his family, friends and workmates. Mr Hunt stated that the defendant, in light of the gravity of the incident, has taken all steps to ensure that such an incident cannot be repeated. He observed that the defendant takes its responsibilities as an employer in corporate citizenship seriously and understands that safety must be a first priority in the workplace. Mr Hunt believed that the lessons learnt from the incident have resulted in a genuine improvement of the safety of the smelter now and into the future. Relevant Principles 31 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above 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.'

[10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows: [I]t 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" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 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. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth 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; (2000) 99 IR 163 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. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t 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). Consideration 32 The defendant had a system of work in place to prevent the risk of an employee being injured in the Cooling Tunnel area of the Paste Plant. The system of work required the defendant's employees to isolate (turn off) the overhead chain, which operated the conveyor system, before entering the Cooling Tunnel. The system of work was set out in a written document known as the Isolation Matrix, which was displayed at various places around the Cooling Tunnel. 33 The risk to the health and safety of employees that arose was the risk of having employees attempting to remove a jammed anode, which brought them into close proximity to inadequately guarded machinery, being a conveyor system, without ensuring that the machinery was isolated. The employees were placed at risk of becoming hit, trapped, or entangled with the machinery. 34 The defendant had a system of work in place, which attempted to control this risk. However, the system was deficient and inadequate. At the time of the incident, there were a number of open sections, which facilitated access and egress to the conveyor system. Access was only precluded by a metal chain. There were also openings allowing access and egress to the Cooling Tunnel area. Clearly, the guarding of the conveyor system at the time of the incident was inadequate. The risk could have been eliminated by replacing the existing guarding system, as occurred shortly after the incident, with the installation of an automated, or interlocked guarding system whereby the powered overhead chain of the conveyor system shuts down automatically as soon as any gate in the fence allowing access to the relevant area is opened. 35 Although the defendant had a system of work known as the Isolation Matrix in place at the time of the incident, it is apparent that this was no more than a paper system, which, in certain areas and certain situations, was disregarded. This is clear from the agreed statement of facts which acknowledge (at paragraph 72) that, at the time of the incident, it was common practice for plant operators to enter the Cooling Tunnel for the purpose of manipulating trolleys, without complying with the Isolation Matrix. It was also an agreed fact that when Mr O'Connell and Mr Bingham were required to perform the task of clearing the green line, the overhead chain was not isolated prior to accessing the area. It was acknowledged that it was not common practice for plant operators to cause a trolley to move against the flow of the powered chain, without first isolating the conveyor system. The practice of both Mr O'Connell and Mr Bingham of undertaking this type of intervention was singular to them and not known to, or approved of, by the management of the defendant, including the Team Leader of C Crew. (See paragraph 74 of the agreed statement of facts). 36 In practice, it would therefore appear that Mr O'Connell and Mr Bingham did not comply with the Isolation Matrix. I propose to take into account that these employees breached the safety system of the defendant in determining the overall culpability of the defendant. 37 On 6 February 2004, the defendant commenced production of new green anodes which were approximately 100mm longer and 80kg heavier than the standard anodes. The defendant, in a memorandum dated 6 February 2004, noted that there may be some transport and handling issues, and then observed "Should you need to manually intervene with these new anodes please take extra care before commencing. Take five minutes to complete your 'Pocket' JSA before you attempt to rectify any situation." 38 The defendant recognised that there may be an additional risk due to the production of the new green anodes. In my view, the risk was reasonably foreseeable and it was known to the defendant and foreseen by it. The defendant, by its plea, accepts that the risk of an employee failing to isolate the plant as required, was not completely unforeseeable. 39 Mr H J Dixon SC, who appeared for the defendant with Mr T Saunders of counsel, submitted that relevant to the nature and quality of the offence, was the fact that, at the time of the accident, Mr O'Connell had 22 years experience working in the Paste Plant and Mr Bingham, 14 years experience. 40 In my view, the fact that both Mr O'Connell and Mr Bingham were experienced operators, who had received training in the Isolation System, does not make the risk to health and safety unforeseeable and affect the nature and quality of the offence. I agree with the observations of Boland J in Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117, where his Honour said at [28]: [28] It cannot be assumed that because a worker, even an experienced one, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out any possibility that he or she will not place themselves at risk in relation to a dangerous piece of machinery that is not guarded to the maximum possible degree. Workers may act foolishly, as demonstrated in cases such as WorkCover v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52 at [13] and Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 at [70]. That is why the obligations on an employer under the Act require that employer to actively search out and, where it is at all possible, eliminate any risk to health and safety. 41 The irresistible conclusion is that, regardless of the design of the overhead conveyor and that a senior WorkCover Inspector inspected the overhead conveyor and required certain measures to be taken, the guarding installed did not allow for the possibility that an employee might not isolate the conveyor before entering into the Cooling Tunnel to perform work. Although I accept this is not a case where the defendant simply disregarded the requirement for a safe system of work, it is a case where the systems were insufficient to guard against the risk. 42 I accept the defendant operates a complex industrial undertaking characterised by many inherent risks. It employs a large workforce comprised of persons who are highly skilled and trained and it has extensive measures in place to avoid risk. I propose to assess the defendant's culpability with these factors in mind. 43 In determining the level of seriousness of the offence, the gravity of the injury actually resulting from the breach, does not, of itself, dictate the amount of penalty, nevertheless, the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety. Although acknowledging this approach, Wright J, President in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 204 observed: "... where a fatal injury had occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious." 44 I am bound to take into account the crush injuries suffered by Mr O'Connell, which led to his death. Although Ms P McDonald of counsel, who appeared for the prosecutor, submitted that the seriousness of the offence, was demonstrated by the simple and straightforward steps the defendant would have been able to implement to meet it obligations under the Act, it seems to me that the steps taken by the defendant, resulting in a total cost of $20 million ($1.2 million in respect of the Cooling Tunnel area of the Paste Plant) could not be described as simple and straightforward. Nevertheless, it was not contended by the defendant that it was impracticable to take such steps. In my view, this is a most serious offence. 45 Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that aggravating factors may be taken into account. Relevantly, pursuant to s 21A(2)(d), the defendant has four previous convictions. In 1990 and 2001, the defendant was found guilty of offences pursuant to s 15(1) of the Occupational Health & Safety Act 1983 by the Chief Industrial Magistrate and penalties of $1,000 and $17,000 respectively were imposed. 46 In Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, 27 April 2004, matter No 5351 of 2003), Haylen J imposed a penalty in respect of an offence under s 8(1) of the Act which occurred on 14 November 2001 involving a crane and a fatality. His Honour imposed a fine of $146,250. The risk exposed by this particular incident occurred in a different area of the defendant's smelter. 47 In Inspector Simpson v Tomago Aluminium, Boland J determined an offence under s 8(1) of the Act and imposed a penalty of $78,000. This offence occurred on 10 June 2002, with judgment delivered by his Honour on 15 April 2005. Once again, this incident occurred in a different area of the defendant's smelter and it could not be said that the risk exposed by this particular incident was of a similar nature to the one presently before the Court although it did involve a conveyor. The incident presently under consideration occurred prior to the penalties being imposed by Haylen and Boland JJ. It cannot be said that the defendant has re-offended in the face of the penalties imposed by their Honours. However, in noting the criminal history of the defendant, the Court of Criminal Appeal held in R v Johnson [2004] NSWCCA 76, that in applying s 21A(2)(d) of the Crimes (Sentencing Procedure) Act the Court is still bound by the decision of the High Court in R v Veen (No 2) (1998) 164 CLR 465 and adopted the expression of the Veen principle given by Howie J in R v Shankley [2003] NSWCCA 253 at [31]: [31] ... The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted". 48 I propose to be guided by the above principle in determining sentence. 49 I am also required to take into account any aggravating or mitigating factors in sentencing. Section 21A(2)(g) provides: 21A Aggravating, mitigating and other factors in sentencing (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... 50 Mr O'Connell received crush injuries when caught between the anode trolley and the table resulting in the loss of his life. I therefore propose to take s 21A(2)(g) into account in determining sentence. 51 I am obliged to consider any factors that may mitigate the seriousness of the offence committed by the defendant. Section 21A(3)(b) and s 21A(3)(f) of the Crimes (Sentencing Procedure) Act provides: 21A Aggravating, mitigating and other factors in sentencing (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(b) the offence was not part of a planned or organised criminal activity, ...

... 52 Mr Hunt detailed many ways in which the defendant seeks to be constructively and beneficially involved in the Hunter community. It is, in my view, entitled to a measure of discount to reflect its general good citizenship. I am also prepared to find that the defendant has a good record when considered in the context of its size and the nature of the organisation. 53 Section 21A(3)(g) and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides: 21A Aggravating, mitigating and other factors in sentencing (3) Mitigating factors ... (g) the offender is unlikely to re-offend, ... (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, ... 54 The defendant has outlaid $20 million to improve safety of the smelter. It has an impressive array of safety systems in place, which lead to a finding that the offender is unlikely to re-offend. The defendant has accepted responsibility for the incident and the death of Mr O'Connell and expressed its deepest remorse. This is a factor to be taken into account in its favour. I also take into account the defendant's contrition and strong commitment to occupational health and safety. 55 Sections 21A(3)(k), s 21A(3)(l) and s 21A(3)(m) of the Crimes (Sentencing Procedure) Act provide: (3) Mitigating factors ... (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). 56 The defendant entered an early plea of guilty and it is acknowledged by the prosecutor that the defendant co-operated with the WorkCover Authority. The defendant is entitled to a discount on the penalty of 25 per cent for its early plea of guilty. 57 In respect of general deterrence, the defendant accepted that in respect of offences of this nature, it is generally the case that the penalty to be imposed includes an element for general deterrence. It was respectfully submitted that, as was the case before Boland J in Inspector Simpson v Tomago Aluminium there is no warrant for a significant quantum in respect of general deterrence. Boland J observed at [32]: [32] As to general deterrence, I consider it is appropriate to draw attention to the need for employers operating large plants containing complex machinery to be constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety. I have, therefore, included an element in the penalty for general deterrence. 58 It may be that his Honour underscored the weight to be given to general deterrence in that matter. The authorities confirm that both general and specific deterrence feature prominently in criminal matters. It is important to convey to employers operating in similar industries to the defendant, the full extent of their obligations under the Act. In making these observations, I acknowledge that it is clear from the evidence that the defendant strongly promotes general awareness in respect of safety and the need for vigilance by employers and employees alike, both within its operations and throughout the wider community. I propose to include a significant element in the penalty for general deterrence. 59 In relation to specific deterrence, I accept the defendant's submission that this is not a case where there is a need for the penalty to be framed so as to require the attention of the defendant to be drawn to the need to address safety issues. The defendant has comprehensive measures in place demonstrating its commitment to occupational health and safety so that persons are not exposed to risks. In addition, extensive remedial steps were taken to avoid a recurrence of the risk. However, the defendant remains an employer operating in a high-risk heavy industry and has employees performing the same work as that undertaken by Mr Bingham and Mr O'Connell. Therefore, I propose to include an element in the penalty in respect of specific deterrence. 60 The Court received victim impact statements by Mrs Suzanne O'Connell, Kristin O'Connell, Mr O'Connell's daughter and her son Aiden O'Connell. Mrs O'Connell stated that she had been with her husband Neil since she was 17 years of age and could not remember any other way of life. Mr O'Connell died three weeks before their 26th wedding anniversary. Mrs O'Connell described her inability to sleep properly and her loss of interest in cooking and eating. Her daughter was in a serious car accident three months after her husband's death while she was six months pregnant. She remained in a wheelchair for three months after the accident and was unable to look after herself and her four-year old son. 61 Mrs O'Connell described the physical and mental exhaustion of endeavouring to cope with every day life after the loss of her husband and having to care for her daughter and grandson. Mrs O'Connell spoke of suffering clinical depression and that she now takes medication. Mrs O'Connell described the agony of the 11 days that her husband remained in intensive care, undergoing four operations and being told that he was not expected to survive. Mrs O'Connell spoke of growing old alone without the love and support of the man she loved with all her heart. 62 Ms Kristin O'Connell described the difficulty in trying to explain to her four year old son why his "Poppy" went to heaven and the sadness of knowing that her daughter would not know her grandfather. Ms O'Connell spoke of her regret that her father would not be there to see the most important days of her life. Her father was her friend and she said that she misses him more and more each day. 63 As I observed in Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm at 182 at [138]: [138] Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 64 I respectfully agree with the reasoning of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 84 - 85 where his Honour said: A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so ... In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. 65 Similar observations were made by Members of this Court in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43] and Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J). 66 I have considered the statements from Mrs O'Connell, Kristin and Aiden O'Connell and formed the view that it would not alter the penalty which I think is otherwise appropriate in this matter in all the circumstances of the case. 67 However, it is appropriate that the Court extends its profound sympathy to Mrs O'Connell, to her daughter Kristin and her grandson, Aiden and acknowledges the devastating effect that Mr O'Connell's death has had on them. 68 As was observed by Boland J in Foamex at [43], the receipt of a victim impact statement given by a family victim "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". 69 As I observed at the beginning of my consideration of this matter, the primary factor to be considered by the Court in determining the appropriate sentence is the objective seriousness of the offence charged. Any matters, which aggravate the objective seriousness, and any matters which mitigate their seriousness, must also be taken into account. 70 The prosecutor sought an order pursuant to s 115 order of the Act. This section provides:

(1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct). (2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (3) If the offender fails to comply with an order under this section, the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:

(a) the original contravention, its consequences, the penalty imposed and any other related matter, and (b) the failure to comply with the order.

(4) The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender. 71 A copy of the proposed s 115 order was provided to the defendant on 22 February 2007, being two working days before the sentencing hearing. The grounds advanced for the order by the prosecutor were general deterrence. 72 The defendant submitted that it had not had an opportunity to make relevant enquiries or to prepare evidence in relation to the assumptions upon which the order was sought. In WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33, the Full Bench observed at [55] that the purpose of such an order is to draw "attention to the defendant's offending behaviour and act as an ongoing deterrent to influence the offender to address attention to workplace health and safety in an ongoing and proactive manner in order to avoid the adverse consequences that such publicity or notification may bring to the offender's corporate reputation". 73 In support of her application for an order, Ms McDonald drew the Court's attention to 13 judgments between March 1999 and June 2005, dealing with offences involving a conveyor and an employee or worker becoming caught in the conveyor, or pinned by the conveyor against another piece of equipment. 74 As was observed in Chen, the purpose of the order is to influence the offender to address occupational health and safety. I have found that the defendant has a relatively good record in a large and complex undertaking and has taken significant steps to avoid a recurrence of the offence. As can be seen from the evidence of Mr Hunt, the defendant has a comprehensive safety system in place and continues to demonstrate its commitment to occupational health and safety, so that persons are not exposed to risks. 75 Furthermore, I am not satisfied, in light of the lack of evidence before the court, that there is an absence of awareness about the need for ensuring employees isolate overhead conveyor motors, as is sought in the proposed publication. I do not know whether failing to isolate overhead conveyor motors is a widespread practice or that the guarding of the plant and equipment that has been undertaken by the defendant here by the introduction of an automatic isolation system, would be appropriate. In respect of the operations of other employers in the Hunter region, I am also mindful that the defendant already promotes awareness about workplace safety. For these reasons, I am not persuaded that the circumstances of this case warrant the Court exercising its discretion to make a s 115 order. I decline to do so. 76 The maximum penalty in this case is $825,000, given the defendant's prior convictions. I consider an appropriate penalty, taking into account all of the circumstances set out earlier in these reasons, is $230,000. 77 The prosecutor sought costs and a moiety of the fine. 78 The defendant sought, in the event that it was successful in opposing the s 115 order, its costs relating to that application. In my view, bearing in mind this is a sentencing hearing, it is not appropriate for costs to be apportioned in such a hearing. The application is rejected. I propose to make the usual orders in respect of costs. ORDERS 79 The Court makes the following orders: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $230,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs 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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