Inspector Wayne James v Seda Pty Ltd

HEARING DATES: 08/19/2002; 12/09/2002 DATE OF JUDGMENT: 12/20/2002

Prosecutor: Ms L.M. McManus of counsel Solicitors: Mr G. Henderson Phillips Fox LEGAL REPRESENTATIVES: Defendant: Mr R. Moore of counsel Solicitors: Mr J. Lloyd John Lloyd & Co

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Friday 20 December 2002

IRC6718 of 2001 INSPECTOR WAYNE JAMES v SEDA PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC6720 of 2001 INSPECTOR WAYNE JAMES v SEDA PTY LIMITED Prosecution under s31R(5) of the Occupational Health and Safety Act 1983 IRC6721 of 2001 INSPECTOR WAYNE JAMES v SEDA PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC6722 of 2001 INSPECTOR WAYNE JAMES v SEDA PTY LIMITED Prosecution under s31R(5) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm369

1 These prosecutions have been brought by the WorkCover Authority of New South Wales through Inspector Wayne James under the provisions of s15(1) and s31R of the Occupational Health and Safety Act 1983 ("the Act"). The prosecutor tendered evidence in the two charges brought under s15(1) of the Act. In matter No IRC6718 of 2001 the charge is brought in relation to the risk to safety in the operation of the Bread Improver Line No. 2 and Bread Improver Line No. 3. In matter No IRC6721 of 2001, the charge relates to the risk to safety in the operation of the Bread Improver Line No. 1.

2 In matter No IRC6718 of 2001 it is alleged: the Defendant, . . . an employer, breached s15(1) of the Occupational Health and Safety Act 1983 on 4 August 2000 at premises located at 4-6 Boola Avenue, Yennora in the State of New South Wales, in that it failed to ensure the health, safety and welfare at work of its employees.

Particulars The defendant failed to: 1.1 Provide or maintain plant in Bread Improver Line No 2 in a condition that was safe and without risks to health in that it failed to ensure: 1.1.1 the safe working load was displayed on conveyors; 1.1.2 a permanent identification number was displayed; 1.1.3 controls and switches were identified to indicate their function; 1.1.4 emergency stop switches were fitted to conveyors; 1.1.5 adequate motor isolation switches were fitted; 1.1.6 adequate labelling of motor isolation switches; 1.1.7 rear guards were provided on conveyor drive chains and sprockets; 1.1.8 adequate guarding of the chain and sprockets of the drive system for the oven and on the flattening roller machine and the mixing machine; 1.1.9 nip points between driven rollers and conveyor belts on the multilevel inclined conveyor were adequately guarded to prevent the operator being drawn into the nip point; 1.1.10 nip points between driven rollers and conveyor belts on the multilevel inclined conveyor were adequately signed to warn the operator of the potential of being drawn into the nip point; 1.1.11 that cover flaps/guards on the entry side of the multilevel inclined conveyor were adequately secured. 1.2 Provide adequate instruction and training, including induction training, on the operation of plant and machinery comprising Bread Improver Line No 2 prior to allowing employees to work on the Line. 1.3 Provide adequate information, instruction or training on emergency procedures.

3 In matter No IRC6721 of 2001, it is alleged: the Defendant, . . . an employer, breached s15(1) of the Occupational Health and Safety Act 1983 on 4 August 2000 at premises located at 4-6 Boola Avenue, Yennora, in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees at work. Particulars 4 The defendant failed to 1.1 Provide or maintain plant in Bread Improver Line No 1 in a condition that was safe and without risks to health in that it failed to ensure: 1.1.1 the safe working load was displayed on conveyors; 1.1.2 a permanent identification number was displayed; 1.1.3 controls and switches were identified to indicate their function; 1.1.4 emergency stop switches were fitted to conveyors; 1.1.5 adequate motor isolation switches were fitted; 1.1.6 adequate labelling of motor isolation switches; 1.1.7 rear guards were provided on conveyor drive chains and sprockets; 1.1.8 adequate guarding of the chain and sprockets of the drive system for the oven. 1.2 Provide or maintain plant in Bread Improver Line No 3 that was safe and without risks to health in that it failed to ensure: 1.2.1 the safe working load was displayed on conveyors; 1.2.2 a permanent identification number was displayed; 1.2.3 controls and switches were identified to indicate their function; 1.2.4 emergency stop switches were fitted to conveyors; 1.2.5 adequate motor isolation switches were fitted; 1.2.6 adequate labelling of motor isolation switches; 1.2.7 rear guards were provided on conveyor drive chains and sprockets; 1.2.8 adequate guarding of the chain and sprockets of the drive system on the flattening roller machine and the mixing machine. 1.3 Provide and maintain conveyors in the inclined conveyor adjacent to the Agridy Dryer that were safe and without risks to health in that it failed to ensure: 1.3.1 the safe working load was displayed on conveyors; 1.3.2 a permanent identification number was displayed; 1.3.3 controls and switches were identified to indicate their function; 1.3.4 emergency stop switches were fitted to conveyors; 1.3.5 adequate labelling of motor isolation switches. 1.4 Provide and maintain a packaging machine identified as UBE model 67-2P, serial number R67, that was safe and without risks to health in that it failed to ensure: 1.4.1 adequate guarding of the chain and sprockets of a number of drive systems; 1.4.2 a top cover with an electrical interlocking device was fitted. 1.5 Provide and maintain a packaging machine identified as UBE model 67-8BT, serial number 756, that was safe and without risks to health in that it failed to ensure adequate guarding of the chain and sprockets of a number of drive systems. 1.6 Conduct any adequate machine guarding risk assessment on all plant in the Premises.

6 When these matters first came on for hearing on 19 August 2002, an application was made that the offences pleaded by the prosecutor under s31R(5) be discontinued. The prosecutor indicated facts relevant to the offence as pleaded under s31R(5) were to be included in the agreed statement of facts to be handed up in relation to the s 15 offences. The court raised with the parties the effect of the authority of R v De Simoni (1981) 147 CLR 383. The matter was adjourned for further submissions. On the re-listing of the matter, Ms L McManus, counsel for the prosecution, brought two Amended Applications for Order under the provisions of s15(1) of the Act, within the same charge numbers. She requested these two charges be first dealt with by the court. The defendant pleaded guilty to the two charges brought under s15(1) of the Act.

7 An agreed statement of facts was tendered in matter Nos IRC6718 and 6721 of 2001 and relevantly reads as follows: 4 At all material times the Defendant 4.1 carried on business as a producer of bread products, particularly pita bread, at the Premises; and 4.2 employed Yan Zhong Zhu as dough maker at the Premises. 5. On 4 August 2000 Yan Zhong Zhu was working in a factory by himself at 4 -6 Boola Avenue, Yennora ( the Premises ) on a multilevel inclined conveyor ( Conveyor ) on the Bread Improver Line No. 2. His left arm was drawn into the Conveyor whilst he was attempting to remove and adjust a jammed teflon cover flap/guard on the Conveyor. He was unable to stop the machine himself. 6. Other workers came from another area of the factory to assist however they could not find a stop button. He was trapped in the moving Conveyor for approximately 30 minutes before the Conveyor was shut off. He then remained trapped in the stationary Conveyor for about another 30 minutes. 7. Mr Zhu sustained severe injuries to the left forearm, lacerations on the left upper arm, stomach and groin/penis. He was off work for 3 weeks. 8. Usually dough moved along the top belt of the Conveyor then transferred to the one below and went through all 13 levels until it reached the last belt, where it then went into the oven and on to the packaging area. The Conveyor was approximately 12m long (incline length) x 750mm wide x 2m high at the highest point which was the exit end of the Conveyor. On each end of the Conveyor was rubber cover/flap guard that covered the in-running belts. 9. It was while Mr Zhu was reaching into the area of the cover flap/guard while the Conveyor was running that his hand and then his arm was dragged into a 60mm gap between 2 running conveyor belts. Mr Zhu recently informed WorkCover that during his shift he noticed that one of the two screws holding the cover that fell was missing. However, it would appear that he did not report this to anyone at the time. 10. Mr Zhu had first commenced employment with Seda in January of 1991. On the first day he was shown the safety of the machines. He left the company and started his own business for approximately 12 months. He returned to work for Seda on 1 July 2000. 11. Mr Shimon Dahari made it clear in his interview statement that he had not provided Mr Zhu with any special training. He also made it clear that he had assumed that Mr Zhu would know all about the safety procedures, as he had already himself run a business and should have known about that without any additional training. Mr Dahari stated that "I use (sic) to just tell him when he was doing something wrong. Don't do this, don't do that. This is my nature, I do it all the time." Mr Zhu has stated to WorkCover that he worked on the Lines for some 10 to 12 years and that he knew everything (at least, insofar as the adjusting of the covers) and that other bakers had shown him what to do. 12. At 2.30 pm on 4 August 2000, in response to a verbal accident notification that was received from NSW Police, the Prosecutor attended the Premises to investigate the accident. 13. On arrival at the Premises, the Prosecutor was met by Constables Tracey Duncan and Andrew Quinn from Merrylands Police Station, who then accompanied him for an inspection. The Prosecutor was subsequently met by Mr Shimon Dahari, Managing Director of the Defendant, Mr Mark Nelson, owner of Angelo Engineering Pty Limited, and Mr Matt Ryan, a contractor employed by Angelo Engineering. 14. The Prosecutor observed the following: 14.1 Within the factory there were 3 Bread Improver Lines. Each started adjacent to the eastern roller door and progressed north, then west along the factory's length and then south to the packaging area. 14.2 Constables Duncan and Quinn took the Prosecutor between the second and third Bread Improver Lines to an area where the lines went from a northern direction to a westerly direction. They identified the feed end of the Conveyor as the area where Mr Zhu was removed. 14.3 In the corner where the No. 2 line changes direction from north to west was a transfer machine that was fed by a 4-belt telescopic conveyor. The transfer machine fed the top loop feed belt of the multilevel inclined fixed belt conveyor, which travelled 2m to the top of the Conveyor, then up along the approximate 750mm wide x 12m inclined length of the Conveyor. 14.4 Each of the 13 levels had loop belts which changed direction at each level until the last level that went out from the Conveyor's frame at the non-feed end to the conveyor that fed the oven on the western end. 14.5 On the feed and non-feed end and on the southern side of the Conveyor were drive motors, sprockets and drive chains attached to the ends of each of the 13 rollers. On the northern side were gears with no drives. 14.6 The guarding of the drive sprocket and chain on the feed end were on the floor adjacent to the side of the Conveyor. The guard on the gears was also removed and on the floor. Both guards did not have any rear guarding. 14.7 The guarding of the non-feed end was such as to leave the motor's drive sprockets and chain exposed. There was also no rear guarding of the 13 drive chains and sprockets, although the front was mostly covered. 14.8 The area identified by Constables Duncan and Quinn on the feed end south side had the mounting bolts removed from the bearing housing of the top roller. The second roller had the bearing housing's mounting bolts removed and the bearing housing and sprockets were removed from the roller's shaft. The third roller down also had the mounting bolts removed. 14.9 The drive chain had also been removed from between 1 and 2 rollers and 2 and 3 rollers. 14.10 There was an approximate gap of 60mm between each of the 13 drive rollers and belts. 14.11 On each end of the Conveyor were cover flaps that covered the inrunning belts. These measured approximately 90mm high x 750mm long x 4mm thick. The one covering the inrunning belts between rollers 2 and 3 had been removed and was on the floor adjacent to the Conveyor. 14.12 There was no motor isolating switch for the 2 drive motors for the Conveyor. 14.13 There were no emergency stops for the Conveyor. 14.14 There was no safe working load and identifying number displayed on the Conveyor. 14.15 There was no indication as to where the electrical isolation switch of the Conveyor was located. 15. On 4 August 2000 the Prosecutor identified the following deficiencies in machinery at the premises: 15.1 Bread Improver Line No 1 was deficient in the following respects: 15.1.1 no safe working load was displayed on conveyors; 15.1.2 no permanent identification number was displayed; 15.1.3 controls and switches were not identified to indicate their function; 15.1.4 emergency stop switches were not fitted to conveyors; 15.1.5 adequate motor isolation switches were not fitted; 15.1.6 there was no adequate labelling of motor isolation switches; 15.1.7 no rear guards were provided on conveyor drive chains and sprockets; 15.1.8 there was no adequate guarding of the chain and sprockets of the drive system for the oven. 15.2 Bread Improver Line No 2 was deficient in the following respects: 15.2.1 no safe working load was displayed on conveyors; 15.2.2 no permanent identification number was displayed; 15.2.3 controls and switches were not identified to indicate their function; 15.2.4 no emergency stop switches were fitted to conveyors; 15.2.5 no adequate motor isolation switches were fitted; 15.2.6 there was no adequate labelling of motor isolation switches; 15.2.7 no rear guards were provided on conveyor drive chains and sprockets; 15.2.8 there was no adequate guarding of the chain and sprockets of the drive system for the oven and on the flattening roller machine and the mixing machine; 15.2.9 nip points between driven rollers and conveyor belts on the multilevel inclined conveyor were not adequately guarded; 15.2.10 nip points between driven rollers and conveyor belts on the multilevel inclined conveyor were not adequately signed to warn the operator of the potential of being drawn into the nip point; 15.2.11 cover flaps/guards on the entry side of the multilevel inclined conveyor were not adequately secured. 15.3 Bread Improver Line No 3 was deficient in the following respects: 15.3.1 no safe working load was displayed on conveyors; 15.3.2 no permanent identification number was displayed; 15.3.3 controls and switches were not identified to indicate their function; 15.3.4 no emergency stop switches were fitted to conveyors; 15.3.5 no adequate motor isolation switches were fitted; 15.3.6 there was no adequate labelling of motor isolation switches; 15.3.7 no rear guards were provided on conveyor drive chains and sprockets; 15.3.8 there was no adequate guarding of the chain and sprockets of the drive system on the flattening roller machine and the mixing machine. 15.4 An inclined conveyor adjacent to an Agridy Dryer was deficient in the following respects: 15.4.1 no safe working load was displayed on conveyors; 15.4.2 no permanent identification number was displayed; 15.4.3 controls and switches were not identified to indicate their function; 15.4.4 no emergency stop switches were fitted to conveyors; 15.4.5 there was no adequate labelling of motor isolation switches. 15.5 A packaging machine identified as UBE model 67-2P, serial number R67, was deficient in the following respects: 15.5.1 there was no adequate guarding of the chain and sprockets of a number of drive systems; 15.5.2 a top cover was not fitted with an electrical interlocking device. 15.6 A packaging machine identified as UBE model 67-8BT, serial number 756 was deficient in that there was no adequate guarding of the chain and sprockets of a number of drive systems. 16. On 9 August 2000 the Prosecutor issued the company with 10 Improvement Notices ( Notices ) concerning deficiencies identified on 4 August 2000. Two of the Notices, Improvement Notices Nos. 198711 and 198712 concerned plant and equipment involved in Mr Zhu's accident on 4 August 2000. 17. On 15 August 2000 the Prosecutor received a facsimile from Mr Dahari of the Defendant, providing details of the injured person and a quote for the electrical work that was to be carried out as a result of the Notices. 18. On 12 September 2000, the Prosecutor received a call from Mr Dahari, a director of the Defendant, requesting an extension for the compliance with the requirements imposed by the Notices until 15 October 2000 due to the fact that two contractors that the Defendant has engaged to do the work could not complete the work on time. The Prosecutor accordingly granted the Defendant an extension to comply with the Notices until 15 October 2000. 19. On 6 December 2000, the Prosecutor visited the Premises to assess the Defendant's compliance with the Notices. A second factual inspection was undertaken by the Prosecutor. On arrival, the Prosecutor was met by Mr Eran Me-Tal, Manager of the Defendant and Mr Karwin Hamman, who then accompanied him during his inspection of the Premises. The Prosecutor observed that the Defendant had not yet complied with requirements imposed by Improvement Notices Nos. 198711 and 198712 in the following respects: (a) Improvement Notice No. 198711 issued in respect of the conveyors on the Bread Improver Line No. 2: (i) there was identified safe working load displayed on the conveyors; (ii) there was no permanent identification number displayed; (iii) the control switches were not identified to their function; (iv) there were no emergency stop switches fitted to the conveyors; (v) there were no rear guards on the conveyors' drive chains and sprockets. (b) Improvement Notice No. 198712 issued in respect of the guarding of machines on the Bread Improver Line No. 2: (i) there was no guarding of the chain and sprockets of the drive system on the oven; (ii) there was no guarding of the flattening roller machine; (iii) there was no guarding of the mixing machine 20. On 12 December 2000, the Prosecutor visited the Premises with the intention of assessing the level of compliance with the Notices. Present on that day was Mr John Buttriss, sole trader electrician, Mr Mark Nelson of Angelo Engineering, Mr Matt Ryan a contractor employed by Angelo Engineering, Mr Kirwin Hammam and Ms Vicky O'Brien of The Environmental Health Consultancy and Mr Eran Me - Tal, Bakery Manager of the Defendant. 21. On 15 December 2000, the Prosecutor issued two further Improvement Notices which required the Defendant to comply with the requirements imposed by the Notices by 8.00am on 8 January 2001. Present on that day was Mr Matt Ryan of Matt Ryan Engineering and a contracted party with Angelo Engineering. 22. On 5 January 2001, Mr Dahari of the Defendant requested that the Prosecutor attend the Premises to give advice and to see if anything further was required before the compliance date expired for the Improvement Notices issued on 12 December 2000. 23. On 12 January 2001, in the company of WorkCover Inspector Raj Garg, the Prosecutor visited the site at 4-6 Boola Avenue, Yennora, to assess the level of compliance with the two further Improvement Notices that were issued. On this day, Mr Eran Me-Tal, Bakery Manager of the Defendant, was present and it was identified that there were a small amount of additional items that were overlooked by the Defendant. 24. On 23 January 2001, the Prosecutor received a letter stating that the Defendant had completed the work as requested. On 31 January 2001, the Prosecutor visited the Premises and noted that the Defendant had complied with all Improvement Notices he had issued.

8 Ms L.M. McManus for the prosecution tendered the agreed statement of facts, photographs of the machinery taken on the day of the incident at the premises of Seda Pty Limited and photographs of Bread Line No. 2. She also tendered the industrial record of the company and two Improvement Notices issued on 15 December 2000 against the defendant by the WorkCover Authority.

9 Mr R. Moore appeared for the defendant. He relied upon an affidavit of Mr Shimon Dahari, the director of Seda Pty Limited. The affidavit had a number of annexures related to the WorkCover Improvement Notices issued to this company and repairs undertaken arising out of the Improvement Notices. Also relied upon were photographs taken of the plant, now upgraded. Financial records of an associated Trust through which Seda Pty Limited trades were also tendered.

10 The court must assess the nature and quality of these offences, that is the gravity of each offence viewed objectively (see Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales; (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474 and Haynes v James Glass & Aluminium Pty Limited (unreported, CT772-775/91 20 May 1994). When considering a statute giving expression as a matter of public policy to standards of safety, management and employers generally have a positive obligation to inform themselves of circumstances of safety working (see WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Anor (1995) 59 IR 89 at 100). It is a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: (see Lawrenson Diecasting).

11 The risk to safety in the use of the Bread Improvement Line No. 2 was actualised when Mr Zhu on 4 August 2000 had his arm caught in the machine Line No. 2. Mr Zhu was caught in the machine for 60 minutes as the isolation switches were found 20 to 30 metres away the machine and there was difficulty obtaining his release. Mr Zhu was attempting to take a cover off the machine to readjust it for the type of bread being produced. It appears from the agreed facts the cover was not secured. The cover should not have been removed until after the machine had been switched off. Mr Zhu knew this. He also knew the location of the off-switch but he did not turn the machine off before he performed the adjustment. Further, that part of the machine in which Mr Zhu was caught was not the conveyer belt line area, the identified risks to safety to which most of the particulars of the charges are directed.

12 The machines referred to in the charge are the Bread Improver Lines. The Bread Improvement Lines had been imported. The Bread Improver Line Machines No 2 and No 3 were bought in about 1996 and were imported from Lebanon. Some portions of the machines were purchased in Australia. The Bread Improver Line No 1 had been purchased from Mr Zhu who, after the line was purchased by Seda, the defendant company, then worked for the company as an independent contractor.

13 Mr Dahari, the director of the defendant company opined there was no significant difference as between the operation of each Bread Improver Line. He now acknowledges he cannot assume machines, imported, comply with the rigorous safety standards required for machines in factories throughout New South Wales.

14 The circumstances of these prosecutions reveal the defendant failed to adequately guard, isolate and label three Bread Improver Line Machines in its production line including the attached conveyor belts. It also failed to adequately instruct and train employees in the operation of the Bread Improver Lines: (a) As to Guarding There were some guards over the drive chains of the attached conveyor but there was no guard behind the drive chains of the conveyor. The risk arising from an unguarded machine has been commented upon by Fisher CJ in WorkCover Authority of New South Wales v Zac's Pax Pty Limited (unreported, CT1282 of 1994, 20 December 1995): Leaving dangerous moving parts of machines unfenced always has a potentiality for serious injury wherever it occurs.

(b) Isolated and Emergency Switches There were no emergency stop switches and no adequate motor isolation switches fitted to the bread line machines or the conveyors. (c) Labelling There was a further failure to identify the function of the controls on the Bread Improver Line Machines and especially to adequately label the motor isolation switches. The stop button on the Bread Improver Line No 2 was 20 to 30 metres away from the machine. (d) Instruction and Training There was a failure to adequately instruct and train including any induction training on the operation of the Bread Improver Line No 2.

15 There was no report of this incident by the company to the WorkCover Authority. The NSW Police notified WorkCover. Mr Dahari, the director/owner of the company originally held the view following the incident, the guarding already on the machines was adequate. It was also his view Mr Zhu and others needed only "on the job" instructions. No formal training session was in place. In evidence he conceded he now understands he held an incorrect view and belief.

16 The availability of simple and straightforward steps to remedy the defects in these machines must be considered in an assessment of the objective seriousness of the offence (see WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, CT1025 of 1993, 25 February 1994 at 12). Appropriate measures were not taken immediately by the defendant company even though such measures were available and feasible.

17 The risk to the safety of employees of the defendant company required to operate these machines was recognised after an injury suffered by Mr Zhu, who was not an employee but a contractor to the defendant company. The state of the machines generally has been alleged as the risk to safety. Although Mr Zhu was caught in a part of the machine that was guarded, the degree of seriousness of Mr Zhu's injury can be used to identify the manifest degree of seriousness of the relevant detriment to safety that the machine generally posed (see Watson v Southern Asphalters Pty Limited (1998) 83 IR 446 at 456).

18 Mr Zhu sustained severe injuries to his left forearm and lacerations to his arms, stomach and groin/penis on 4 August 2000.

19 In an assessment of the gravity of these offences I find the unguarded parts to the machine; the lack of labelling; the failure to provide stop switches within reach of the machine operator and the lack of training of the operators created a grave risk to the health and safety of employees on this site. This was a serious offence by an employer in neglect of his obligations under the Act.

20 A number of subjective features are taken into account in consideration of penalty. However, such consideration is secondary to any consideration of the nature and quality of the offence (see Lawrenson Diecasting Pty Limited at 474).

21 Questions of specific and general deterrence must be considered in an assessment of penalty. It is a fundamental duty of the court to ensure that the penalty for the breach compels attention to occupational health and safety standards and to ensure the punishment is appropriate to the offence (see Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) 49 NSWLR 610 and (1999-2000) 99 IR 29 [at 74]).

22 As to the element of specific deterrence there has been a weight of evidence as to the 12 Improvement Notices served on this defendant company. The defendant was over a number of months issued with the 12 Improvement Notices by the WorkCover Authority. The notices directed themselves to identified risks to safety in the design and operation of the machines. These notices were not fully complied with over a five month period until the end of January 2001.

23 Mr Dahari reacted, initially, to the WorkCover Notices quickly and the electrical work was attended to at a total cost of approximately $4,290. However, by 6 December 2000, many of the detailed faults, brought to his attention in the numerous Improvement Notices, had not been attended to. The first guards designed for the conveyor wheels were not held by WorkCover Inspectors to be satisfactory. Electrical equipment was installed to allow access by the operator of the Bread machines to stop and start switches. Those associated electrical cables run along the machines, however, then required guarding. A number of the notices had to be re-issued.

24 Finally on 12 December 2000, Mr Dahari called in Industrial Safety Advisers to assist in the implementation of a complete safety audit and advise as to compliance. There was no final compliance with the notices until late January 2001. Mr Dahari was cross examined on the delay and conceded he now understands his full obligations under the Act to provide his workers with safe working. He effectively conceded 'I now understand'.

25 The defendant company through Mr Dahari has now expressed contrition. He acknowledges the need to rigorously apply his endeavours to ensure a safe working environment for his employees. He expended further monies to bring the equipment up to standard in relation to guarding the switches and labelling.

26 In an assessment of penalty the court has an obligation to compel attention to safe working. The penalty must reflect the seriousness of the breach. As Maidment J said in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, CT93/1062, 26.11.93) are apposite: Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments. . . .

27 The facts in these prosecutions also bring to the fore the need to give serious and urgent attention to identified risks for the purpose of eliminating them from a worksite and to ensure safe working.

28 In assessing penalty, the financial status of the company is a consideration. Mr Moore, on instructions, submitted that there were no financial records for this year but that the company had suffered a 40 per cent loss of income reflecting the loss of a big contract. Clearly that was his instruction. However, Mr Dahari revealed he had lost that contract for only three weeks. The company has had a turnover of $1.7 million in the financial year 1999; $1.9 million in the financial year 2000 and expects a turnover of up to $2.2 million in the last financial year. It is maintaining its level of production. I find the defendant company is one with financial means and do not accept that I should take into account the submission that it has lost 40 per cent of its potential income this financial year.

29 The company has no prior convictions. Therefore the maximum penalty that is applicable for each breach is $550,000.

30 Given the circumstances followed by the prosecution, the presentation of the new Application for Orders on the second day of hearing and the immediate pleas entered, I allow a 20% discount for the utilitarian value of the plea (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104; and R v Sharma [2002] NSWCCA 142).

31 The principle of totality is relevant to this consideration in the sentencing of two offences. The overall criminality must be considered. The High Court in Pearce v The Queen (1998) 194 CLR 610 guided the Commission in Court Session as to sentencing in circumstances where the defendant is charged with more than one offence. The majority McHugh, Hayne and Callinan JJ said: [45] To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (Mill v The Queen (1988) 166 CLR 59) [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. (cf House v The King (1936) 55 CLR 499) It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules (See Crimes Act , s444(2)and(3); Sentencing Act 1989 (NSW), s9; see also Sentencing Act 1991 (Vict), s16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

32 As to the question of totality in R v Holder; R v Johnston [1983] 3 NSWLR 245 (at 260), Street CJ described the principle in the following way: . . . The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. . . . and McHugh J in Postiglione v The Queen (1997) 189 CLR 295 described the operation of the principle thus: The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ( R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ( Holder [1983] 3 NSWLR 245 at 260).

33 In Postiglione, Kirby J also enunciates the principle in the following way (at 340): The totality principle has a dual aspect as explained recently in the Supreme Court of Canada R v M (CA) (1996) 105 CCC (3d) 327 at 349. First, in the words of D A Thomas, Principles of Sentencing 2nd ed (1979) at 56 also cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63 : The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.

34 The principle is expressed in terms which address the cumulative effect of sentences/penalty. There is no reference to a similar thread or link between offences but to the overall criminality of the defendant. The Full Bench of the Commission sitting in Court Session in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) IR 105 181 at [37] followed this reasoning to say: We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate.

35 In the application of the principle of totality, the Commission in Court Session is to have regard to the overall criminality in determining the overall sentence/penalty. When the Industrial Relations Commission of New South Wales is sitting in Court Session considering prosecutions under the Occupational Health and Safety Act 1983 there are, at times, common elements to charges. In such cases the view of the Full Bench must be taken into account and regard must be had, when considering more than one offence, to the principle that a defendant is not to be punished more than once for elements which are common to the offences being considered. The statement of the Full Bench of the Court in Keenan [at 37] that the Commission in Court Session must have regard to "the principle that a defendant is not to be punished more than once for elements which are common to the offences" does not in any way limit the application of the principle of totality to sentence/penalty in matters which do not contain similar elements in the offences. 36 I believe this is an appropriate matter in which to apply the principle of totality.

37 Further, in the application of the principle of totality although three machines are nominated as providing a risk to health, one in the matter No. IRC6718 and two in the matter No. IRC6721 of 2001 they are all Bread Making Machines with many identified "risks" in common. The common elements in the two matters are demonstrated through the similarity of the Particulars provided by the prosecution to the defendant company. The common elements related to failures to guard, provide safety switches, to correctly label the machines and properly instruct as to the safe operation of the machines. The defendant should not be punished more than once for the common elements in these offences.

38 I take into account the gravity of each offence and the relative subjective features placed before this Commission sitting in Court Session and the discount allowed for the utilitarian value of the plea in each prosecution.

39 In matter No IRC6718 of 2001, I find the defendant guilty. I fine the defendant in the sum of $130,000.00.

40 In matter No IRC6721 of 2001 I find the defendant guilty. I fine the defendant in the sum of $130,000.

41 The defendant is therefore fined in the sum of $260,000.

42 I have allowed a discount of 20% for the utilitarian value of each plea in the circumstances. The accumulative penalty is therefore $208,000.00.

43 In the application of the principle of totality the defendant is fined $168,000.00 with a moiety to the WorkCover Authority

Accordingly, I give the following Orders: 1. In Matter No 6718 of 2001, the defendant is fined in the sum of $84,000. 2. In Matter No 6721 of 2001, the defendant is fined in the sum of $84,000. 3. Costs to the Prosecution with liberty to apply.

44 In Matter No IRC6719 of 2001 and Matter No IRC6720 of 2001, as no evidence was presented by the prosecution, the charges are dismissed.

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