Inspector Wayne James v T&M Industries Pty Limited and Anor

T&M Industries (Aust) Pty Limited [ACN 003 837 456]

FILE NUMBER(S): Matter Numbers IRC 3080, 3081 and 3082 of 2002

Occupational Health and Safety - prosecutions under section 15(1) and section 16(1) of the Occupational Health and Safety Act 1983 - light engineering and manufacturing business - plea of guilty entered - one defendant deregistered - stay sought of deregistered company - stay granted - dangerous equipment operated by untrained and unsupervised employees - principle of totality - defendants found guilty of charges - penalty imposed - costs as agreed or assessed CATCHWORDS:

Fines Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983

Donmastery Pty Ltd v Albarran (2004) 49 ASCR 745 Hunter Valley Community Investments Pty Ltd v Bell [2001] FCA 1148 Mikhail Distribution Services v Australia Post [2004] NSWIRComm 235. Re Morton, Ex parte Mitchell Products Pty Ltd (1996) 21 ASCR 497 CASES CITED: Sweeney v Vandeleur Pty Ltd v BNY Australia (1993) 11 ACSR 356 Video Excellence Pty Ltd v Cinotta (1998) 44 NSWLR 742 at 745 WorkCover Authority of New South Wales (Inspector Dell) v Baradine Sawmilling Co Pty Ltd and Anor (2002) 120 IR 102 WorkCover Authority (NSW) (Inspector Robinson) v Bosnia Holdings Pty Ltd [2002] NSWIRComm 295

HEARING DATES: 11/03/2003; 11/06/2003; 02/05/2004; 02/11/2005; 09/16/2005; 10/06/2005

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority of NSW Legal Group LEGAL REPRESENTATIVES:

DEFENDANT: Mr R Moore of counsel SOLICITORS: Haywards

• 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

INSPECTOR WAYNE JAMES v T&M INDUSTRIES PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

INSPECTOR WAYNE JAMES v T&M INDUSTRIES (AUST) PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

INSPECTOR WAYNE JAMES v T&M INDUSTRIES PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2005] NSWIRComm 424

1 These prosecutions were brought under ss 15 and 16 of the Occupational Health and Safety Act 1983 ('the Act'). They arose out of an accident which occurred on 15 July 2000, when Rhys Stevenson was severely injured, when struck by a load which fell from a forklift.

2 A plea of guilty was entered by the two defendants to all three charges, after the close of the hearing of the prosecution case. In the case of the charge in Matter Number IRC 3080 of 2002, the plea followed upon the amendment of the charge, with one particular, relating to the propensity of the forklift in question to topple, no longer being pressed.

3 A complication arose in the case, however, because one defendant had no prior convictions, but the other, T&M Industries (Aust) Pty Ltd had been convicted of other offences by an industrial magistrate. Those convictions were under appeal. It followed that the maximum penalty for the charge against that defendant of either $550,000 or $825,000, depended upon the outcome of the appeal. The maximum penalty for the other offences was $550,000. It was common ground between the parties that finalisation of these cases therefore had to await the outcome of the appeal.

4 The matters came on before the Court again in September and October 2005, because of developments in the appeal proceedings. In written submissions filed by the prosecutor on 24 October, it was recounted that T&M Industries (Aust) Pty Ltd was deregistered by ASIC in February 2005. Consequently, the hearing of the appeal had been vacated, while steps were pursued to have it re-registered. Under arrangements then put in place by the Full Bench, the re-registration was to have occurred by 9 September. The necessary steps were not taken and the appeal was thus no longer being pursued.

5 It was submitted that re-registration was unlikely to occur, until the completion of certain Supreme Court proceedings. In the circumstances, it was the submission of the prosecutor that the maximum penalty available for the offence to which T&M Industries (Aust) Pty Ltd entered a plea is $825,000.

6 It was also submitted, however, that proceedings against a deregistered company are incompetent and must be dismissed, even if deregistration might be achieved at some future time. (See for example the discussion in Sweeney v Vandeleur Pty Ltd v BNY Australia (1993) 11 ACSR 356.) Nevertheless, companies have been granted time to obtain reinstatement, before proceedings are dismissed. (See Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ASCR 497 and Hunter Valley Community Investments Pty Ltd v Bell [2001] FCA 1148, followed in this Court in Mikhail Distribution Services v Australia Post [2004] NSWIRComm 235.)

7 Prosecuting bodies have been held to be aggrieved parties, entitled to apply to have the registration of a company reinstated. (See Australian Competition and Consumer Commissioner v ASIC (2000) 34 ASCR 232 and WorkCover Authority of New South Wales v Picton Truck and Trailer Repairs (deregistered) (2004) 51 ASCR 102.) Re-registration is likely to be ordered, where deregistration has resulted from a technical fault in relation to lodgement of forms and payment of ASIC fees. (Donmastery Pty Ltd v Albarran (2004) 49 ASCR 745). That was submitted to be what had here led to deregistration of the defendant.

8 It was further submitted that the prosecution had committed no abuse of process in the proceedings, nor had it delayed them. T&M Industries (Aust) Pty Ltd was registered when the proceedings were commenced, when the matter was heard and when the guilty plea was entered. All that remained was for judgment, sentence and orders to be made.

9 In those circumstances, it was submitted that the proceedings against T&M Industries (Aust) Pty Ltd should be stayed until 21 April 2006, to permit the former company officers to obtain re-registration of the defendant, or otherwise to enable the prosecutor to make such an application.

10 Having considered the submissions advanced and the authorities relied upon, I am satisfied that the proper course is to accede to the request made. As Spigelman CJ observed in Video Excellence Pty Ltd v Cinotta (1998) 44 NSWLR 742 at 745, at this time the defendant does not exist and at the very least, it is appropriate for the Court to take no further steps in the proceedings. The alternative is to strike out the proceedings, a course with particular consequences in a criminal prosecution such as this. The effect of re-registration would be that by retrospective operation of the relevant section, the defendant would be deemed never to have lost its separate legal personality. There is a significant public interest in the defendant being convicted and fined, if that were to occur, particularly having in mind the plea entered while the defendant was registered. Accordingly, I am satisfied, as I have said, that the proper course is to grant the stay sought. The prosecutions in matter IRC 3081 of 2002, will accordingly be stayed until further consideration is given to the position, at 9.30am on 21 April 2006.

12 The charges to which the pleas were entered provided: MATTER NUMBER IRC 3080 OF 2002

On 15 July 2000, at the premises of 23 Britton Street, Smithfield in the State of New South Wales, the defendant, T & M INDUSTRIES PTY LIMITED [ACN: 003 491 138], being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Leon Gardener, contrary to section 15(1) of the Occupational Health and Safety Act 1983 .

a) At all material times the defendant occupied factory premises located at 23 Britton Street, Smithfield in the State of New South Wales.

b) At all material times the defendant carried on a light engineering and manufacturing business from the Smithfield premises.

c) At all material times the defendant employed Shi Cheng as a supervisor and Leon Gardener as a general hand & labourer at the Smithfield premises.

d) At all material times T & M Industries (Aust.) Pty Limited employed Rhys Stevenson as a general hand and labourer at the Smithfield premises.

e) At all material times Terrance Roland Tisdale, a director of the defendant and a director of T & M Industries (Aust.) Pty Limited, was present at the Smithfield premises.

f) At all material times Terrence Roland Tisdale charged Rhys Stevenson and Leon Gardener with the tasks of moving a load of formed metal products from one location to another at the Smithfield premises.

g) At all material times Gardener operated a Mander Toyota Fork-lift truck in the course of moving the load of formed metal products from one location to another at the Smithfield premises and Stevenson provided guidance to Gardener as regards to the movement of that load.

h) At approximately 8.15am on 15 July 2000 Rhys Stevenson, in the course of assisting in the movement of a load of formed metal products, sustained multiple injuries when he was struck by the said load that was caused to fall from the raised tines of a Fork-lift truck operated by Leon Gardener. i) The defendants failings and/or omissions were the following: i. failing to provide or maintain a system of work for the use and operation of a Fork-lift truck in the course of transporting a load of formed metal products that was safe and without risks to health.

ii. failing to provide or maintain a system of work to ensure access to and use of Fork-lift trucks by persons was controlled and monitored.

iii. failing to provide or maintain a system of work to ensure persons carrying out the scheduled work of using and operating a load shifting machine, to wit, a Fork-lift truck, held a recognised qualification in relation to work of that kind in accordance with clause 8(2) of the Occupational Health and Safety (Certificate of Competency) Regulation 1996 .

iv. failing to provide adequate instruction, training and supervision as may be necessary to ensure the health and safety of persons engaged in the movement of formed metal products by means of a Fork-lift truck. In particular, the defendant failed to provide adequate instruction, training and supervision to ensure: the implementation of a safe method or procedure for the movement of a load of formed metal products by means of a Fork-lift truck; and persons carrying out the scheduled work of using an operating a load shifting machine, to wit, Fork-lift truck, held as recognised qualification in relation to work of that kind in accordance with clause 8(2) of the Occupational Health and Safety (Certificates of Competency) Regulation 1996 .

On 15 July 2000, at the premises of 23 Britton Street, Smithfield in the state of New South Wales, the defendant, T & M INDUSTRIES PTY LIMITED [ACN: 003 491 138] , being an employer, failed to ensure that persons not in its employment, and in particular Rhys Stevenson, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983 . The particulars of the charge are:

a) At all material times the defendant occupied factory premises located at 23 Britton Street, Smithfield in the State of New South Wales.

b) At all material times the defendant carried on a light engineering and manufacturing business from the Smithfield premises.

c) At all material times the defendant employed Shi Cheng as a supervisor and Leon Gardener as a general hand & labourer at the Smithfield premises.

d) At all material times T & M Industries (Aust.) Pty Limited employed Rhys Stevenson as a general hand and labourer at the Smithfield premises.

e) At all material times Terrance Roland Tisdale, a director of the defendant and a director of T & M Industries (Aust.) Pty Limited, was present at the Smithfield premises.

f) At all material times Terrence Roland Tisdale charged Rhys Stevenson and Leon Gardener with the task of moving a load of formed metal products from one location to another at the Smithfield premises.

g) At all material times Gardener operated a Mander Toyota Fork-lift truck in the course of moving the load of formed metal products from one location to another at the Smithfield premises and Stevenson provided guidance to Gardener as regards to the movement of that load.

h) At approximately 8.15am on 15 July 2000 Rhys Stevenson, in the course of assisting in the movement of a load of formed metal products, sustained multiple injuries when he was struck by the said load that was caused to fall from the raised tines of a Fork-lift truck operated by Leon Gardener.

i) The defendants failings and/or omissions were the following: i. failing to provide or maintain a system of work for the use and operation of a Fork-lift truck in the course of transporting a load of formed metal products that was safe and without risks to health.

ii. failing to provide or maintain a system of work to ensure access to and use of Fork-lift trucks by persons was controlled and monitored.

iii. failing to provide or maintain a system of work to ensure persons carrying out the scheduled work of using and operating a load shifting machine, to wit, a Fork-lift truck, held a recognised qualification in relation to work of that kind in accordance with clause 8(2) of the Occupational Health and Safety (Certificates of Competency) Regulation 1996 .

iv. failing to provide adequate instruction, training and supervision as may be necessary to ensure the health and safety of persons engaged in the movement of formed metal products by means of a Fork-lift truck. In particular, the defendant failed to provide adequate instruction, training and supervision to ensure: the implementation of a safe method or procedure for the movement of a load of formed metal products by means of a Fork-lift truck; and persons carrying out the scheduled work of using and operating a load shifting machine, to wit, Fork-lift truck, held a recognised qualification in relation to work of that kind in accordance with clause 8(2) of the Occupational Health and Safety Regulation 1996 . j) As a result of the said failures persons not in the defendants employment, and in particular Rhys Stevenson, were exposed to risks to their health and safety arising from the conduct of the defendants undertaking while they were at the defendants place of work.

13 The parties agreed on a number of factual matters, as follows: MATTER NUMBER IRC 3080 AND 3082 OF 2002

At all material times the prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 2000 and empowered by section 106 of the Act to institute the proceedings in this matter.

At all material times the Defendant, T & M INDUSTRIES PTY LIMITED [ACN: 003 491 138] (" the defendant "), was a company duly incorporated with its registered office at 23 Britton Street, Smithfield in the State of New South Wales.

At all material times the defendant occupied factory premises located at 23 Britton Street, Smithfield in the State of New South Wales.

At all material times the defendant carried on a light engineering and manufacturing business sheet metal products including signs from the Smithfield premises.

At all material times the defendant employed Shi Cheng ("Cheng") as a supervisor and Leon Gardener ("Gardener") as a casual general hand and labourer working some Saturdays 7.00am to 12 noon at the Smithfield premises.

At all material times T & M Industries (Aust.) Pty Limited employed Rhys Stevenson ("Stevenson") as a casual general hand and labourer at the Smithfield premises.

At all material times Terrence Roland Tisdale ("Tisdale"), a director of the defendant and a director of T & M Industries (Aust.) Pty Limited, was present at the Smithfield premises.

At 7.35am on 15 July 2000, on their arrival at the premises of the defendant, Gardener and Stevenson reported to Tisdale.

Gardener accessed a Mander Toyota Forklift ("the Forklift") truck from the production area of the premises. Gardener gained access to the Forklift and commenced to drive the Forklift. The keys to the forklift having been left in the ignition.

Gardener, in the company of Stevenson, then attempted to move a quantity of metal products (roof purlings) utilising the Forklift.

Gardener operated the Forklift truck in the course of moving the load of formed metal products from one location to another at the Smithfield premises and Stevenson provided guidance to Gardener as regards to the movement of that load. Gardener did not possess appropriate certification such as would have lawfully permitted him to utilise the Forklift.

Gardener retrieved the Forklift from inside the factory and drove it to the receival/dispatch area located outside the factory. He then caused the load of formed metal products to be raised by the tines. The load comprised 2 bundles of - formed metal products. One bundle consisted of 26 lengths of metal products ranging in length from 4.95 to 6.18 metres and the other bundle consisted of 30 lengths of metal products ranging in length from 6.2 to 7.14 metres. The total weight of the load was approximately 1.2 tonne. Gardener says that he operated the Forklift in a forward direction such that the mast end of the truck was downhill as it travelled down a slightly graded concrete driveway. Stevenson walked alongside the raised load and provided Gardener with guidance as regards to the movement of the load.

In the course of its travel Gardener caused the tines of the Fork-lift truck to be raised approximately five feet above ground level in order to avoid a motor vehicle that was left parked and unattended upon the driveway. In the course of its travel the Fork-lift was manoeuvred such that that it traversed the grade of the driveway. The load became unstable and started to "wobble".

Stevenson sustained multiple injuries when he was struck by the load of formed metal products weighing approximately 1.2 tonne that were caused to fall from the raised tines of the forklift.

As a result of the incident Stevenson sustained the following injuries: a major midline skull fracture, multiple hairline skull fractures, collapsed lung, fractures to the orbit of the right eye, fractured right maxilla, major fracture of the pelvis, fractured coccyx, fractured acromiociavicular (sic) joint, fractured nose and broken teeth. He experienced impaired vision to his left eye causing double vision, short-term memory loss and inability to concentrate.

On 15 July 2000 an officer of the Bass Hill Crimes Scene Unit of the New South Wales Police Service attended the Smithfield premises and caused a series of coloured photographs to be taken of the Forklift, formed metal products and incident. Those photographs are annexure "A" to this Statement of Facts.

On 17 July 2000 Inspector James attended the Smithfield premises and, in the company of Tisdale, made an inspection of the area, a number of bundles of formed metal products and Forklift. Inspector James caused a series of coloured photographs to be taken and subsequently compiled an inspection report in which Inspector James recorded those observations. Annexure "B" to this Statement of Facts is a copy of Inspector James' report dated 20 July 2000 as well as the colour photographs that he took. In the course of the inspection Inspector James observed, amongst other things, the following: a. a Mander Toyota 1430kgs Forklift truck with Model No. E81 identified by Tisdale as being involved in the incident on 15 July 2000;

b. deposits of what appeared to be sawdust near the curb of the driveway adjacent to the main entrance to the Smithfield premises being the area identified by Tisdale as site of the incident on 15 July 2000; and

c. what appeared to be tyre marks on the concrete driveway in the shape of a tight turning circle similar to the turning circle of a Forklift. The tyre marks were located adjacent to the deposits referred to in b) and slightly up hill towards the workshop.

Stevenson was a 17-year old high school student as at the date of the incident. It was his first day in the employ of T & M Industries (Aust.) Pty Limited. He was performing duties in the place of another casual employee who was absent from work on that date.

Gardener, the nephew of Tisdale, was a 17-year old high school student as at the date of the incident and had been casually employed by the defendant at the Smithfield premises for the preceding 3 to 4 months. He had worked most Saturdays during that period.

Prior to and as at the date of the incident involving Stevenson the defendant had no system in place to control and monitor the use of Forklift trucks at the Smithfield premises. Keys necessary to start the trucks were either left in the ignition of the vehicles or in the possession of Cheng, a storeman or individual operators. On the date of the incident the key to the Forklift truck was left in the ignition and, accordingly, there was no impediment to Gardener accessing the key and operating the Vehicle.

14 Evidence was called from Mr Shi Zhong Cheng, sheet metal worker; Mr Leon Gardener, personal trainer and Mr Rhys Stevenson, apprentice greenkeeper. Ms Denise Walsh, contracts manager, and Mr Van Dung Ha, machine operator, were not required for cross examination. Mr Giles Woodgate gave expert evidence as to the defendants' financial position. He was also not required for cross examination.

15 In these cases, the plea was entered after the close of the prosecution case in all three matters. At the commencement of the hearing, the parties identified the issues lying between them as going to two factual matters and to the question of whether or not the defendants' acts or omissions were causally connected with the risks in question. Once the charge in Matter IRC 3080 of 2002 was amended, one factual issue fell away. When final submissions were made, Mr Reitano, of counsel, submitted for the prosecutor, in relation to the other factual issue, which concerned the question of what instructions had been given to the two workers involved in the accident that '… it does not matter a great deal as to the culpability of the defendant as to what view your Honour takes as to that factual matter ... . '

16 The position of the defendant was similar - whether or not Mr Tisdale had given the instructions in question did not have any great impact upon the defendant's culpability for the offences in question.

The parties' respective cases 17 The case advanced for the prosecutor by Mr Reitano was that while not one of the more serious offences brought before the Court, given that the accident had resulted from the operation of a dangerous piece of equipment by two untrained and unsupervised employees, the offences were serious ones.

18 The nature and quality of the offences could be assessed having regard to the fact that the forklift had been left unattended, with the key in the ignition, enabling two inexperienced employees to gain access to it; and the work involved the movement of obviously heavy metal products. The possibility of death resulting from the risks in question was evident and in fact, serious injury had resulted. There were also obvious and simple measures available which could have guarded against the risk, namely the removal of the key from the machine.

19 It was accepted that account would be taken of the subjective features of the offence. As to discount, it was submitted that there had been no early plea entered, although it was open to the Court to find some utilitarian savings had been achieved from the circumstances in which the plea was entered. It was also accepted that the principle of totality had to be applied.

20 The case advanced for the defendant by Mr Moore of counsel was that some discount in penalty should flow to the defendant, given its co-operation with the prosecution and the entry of the pleas, which led to some savings, albeit the pleas were entered after the close of the prosecution case and the amendment of one of the charges. Account would also be taken of other subjective factors, such as the defendant's obvious contrition, its response to the accident and the fact that it was plainly not an employer oblivious to its obligations under the Act.

21 A global approach to the penalty, such as that adopted by Staunton J in WorkCover Authority (NSW) (Inspector Robinson) v Bosnia Holdings Pty Ltd [2002] NSWIRComm 295 and Haylen J in WorkCover Authority of New South Wales (Inspector Dell) v Baradine Sawmilling Co Pty Ltd and Anor (2002) 120 IR 102, was urged. It was submitted that even where the maximum penalties for the offences with which the two corporations where charged different, that account would be taken of the relative criminality involved in each charge, which it was submitted was the same. Account would also be taken of the financial position of the two companies.

22 It was accepted that the offences were serious. It was submitted however, that account would be taken of the evidence of the defendant's usual approach to the operation of its forklifts and the fact that this was not a case where it was known that the employees concerned had breached the applicable policies in relation to forklift operation, a feature present in other cases to which reference was made. Analogies were also drawn with penalties imposed in other cases, especially those where keys had been left in forklifts.

23 There can be no doubt that the offences charged were made out on the evidence. The evidence led in the prosecution case showed that the two factual issues originally lying between the parties were not such, that their resolution was likely to impact upon the question of whether or not the offences had been committed.

24 The primary consideration in assessing penalty, is the nature and quality of the offences in question. The evidence showed that the defendant's approach to the operation of the forklift was such that two 17 year old school boys, working casually at the premises on a Saturday morning, were able to take a forklift which had the keys in the ignition, without being observed by anyone, to undertake work which they had not been trained to do. They were also not supervised while doing that work. The result was the materialisation of the obvious risk inherent in the approach adopted, with one of the boys suffering terrible injuries as a result. It was plainly a matter of good luck that the results were not more serious. Forklift operations are notoriously dangerous, as the authorities well demonstrate, even when trained and experienced operators are involved in driving them.

25 There was a conflict in the evidence as to the instructions which the boys had received on the day in question. Leon Gardener, the nephew of Mr Tisdale, one of the directors of the defendants, gave evidence at the hearing about instructions he had received on the day from Mr Tisdale, which was inconsistent with two statements which he had earlier made to the investigating inspector. The first statement was made about six months after the accident and the second, over a year later. Mr Gardener's explanation was that he had been confused at the time he gave the statements, he was worried that he would be blamed for everything that had happened and so had made a number of incorrect statements, in order to avoid this possibility.

26 The inconsistent aspects of the statements and the evidence given concerned whether it was Mr Tisdale who had directed the two boys to operate the forklift. In his earlier statements Mr Gardener told the Inspector that it was Mr Tisdale who had given the boys that work to do, but that he had also told them to report to 'Ken'. In his oral evidence at the hearing, Mr Gardener explained that Mr Tisdale had not told him to use the forklift, that he and Rhys Stevenson had decided to do that themselves and that they had not gone to 'Ken'. This was apparently a reference to Mr Cheng.

27 Mr Gardener's evidence was that he had worked at the site on about eight previous occasions, that he had always been supervised by Mr Cheng. This evidence was inconsistent with that given by Mr Cheng. His evidence was that he did not know Mr Gardener. He was aware that Mr Tisdale had a nephew, whom he had heard of, but he had not met him.

28 In cross examination, having earlier indicated those parts of his earlier statements which were wrong, Mr Gardener identified another part of his statement which was inaccurate. In his first statement he told the Inspector that he had driven the forklift on numerous occasions. This was explored further with Mr Gardener in his second statement. The second statement took the form of written questions and answers provided in Mr Gardener's handwriting. There he said: 'Q35 In those numerous times that your (sic) drove the forklift as T & M Industries (Aust) Pty Ltd where was the key for the forklift located?

Q36. In those numerous times did anyone stop you or say anything to you about driving the forklift at T & M Industries (Aust) Pty Ltd?

29 Mr Gardener explained that he had earlier told the Inspector that 'numerous' meant once or twice and that was what had in fact occurred.

30 Mr Cheng's evidence was that he was not asked to supervise the two boys' work on the day of the accident. He was engaged in production work in the factory and only became aware of their presence after the accident. In any event, he himself was not trained in forklift operations. He was a trainee and on his evidence, had not himself frequently driven the forklift.

31 I found Mr Gardener's evidence implausible in a number of respects. His youth and fears might explain what happened, but cannot provide a proper basis for his evidence to be accepted. I am satisfied that where his evidence conflicted with that given by Mr Cheng it had to be rejected. This conclusion also flowed, inevitably, from the fact that the differences in their evidence were matters, in reality, not explored with Mr Cheng.

32 Mr Stevenson had but little memory of the events in question. He could recollect speaking to Mr Tisdale on the morning of the accident. Mr Tisdale told he and Mr Gardener that he wanted them to move some steel around the back of the factory. There was no reason to doubt that evidence. It was also consistent with the first and second statements made by Mr Gardener.

33 It was an agreed fact that neither Mr Gardener nor Mr Stevenson were trained in forklift operations. Given the dimensions and weight of the steel in question, there can be no doubt that it was intended that the work would be done by use of the forklift. This was also consistent with the undoubted fact that Mr Gardener had used the forklift before. It follows that even an arrangement under which Mr Cheng was to supervise the forklift work to be undertaken by the two boys, could not have ensured that the defendant met its obligations under the Act.

34 It follows that as the parties ultimately agreed, even in the absence of Mr Tisdale having directed the boys to drive the forklift, the offences were serious. The boys were given dangerous work to do and did it, being untrained and unsupervised in the forklift operation involved. They were able to do so, because the key was left in the machine. This was ultimately conceded by the defendant, both in submissions and by entry of the plea.

35 The evidence also well demonstrated the simple steps available which would have precluded the accident, which including ensuring that keys were not left in the forklift ignition and that forklift operations were undertaken by the appropriate trained and supervised member of staff. Such steps were implemented without difficulty after the accident. It follows that all of these matters must lead to a substantial penalty. The offence involved young, untrained boys operating dangerous forklift equipment to carry heavy loads while entirely unsupervised. The risk to which they were exposed included the risk of death. Very serious injury was, in fact, sustained by Mr Stevenson. All of those matters must lead to a substantial penalty.

36 The time at which the plea was entered must also be taken into account, in determining penalty. I also accept that some account may otherwise be taken of the defendant's approach, as a result of which most matters were agreed, even at the time the charges were being defended and in the end, a plea was entered. Thereby, some efficiencies were achieved, but given the time and circumstances in which the pleas were entered, I can conclude only that a discount of 10% for utilitarian savings can result. In relation to subjective factors relied upon, I am of the view that some further discount may properly flow, given the evidence of the defendant's prior approach to safety and the steps taken after the accident, and I have so approached the determination of penalty.

37 It follows that considerations of both specific and general deterrence must feature in the penalty imposed. I have so approached the matter. Ms Walsh gave evidence of internal disputes between shareholders and a downsizing and restructure of the corporate group, with the result that the defendant was no longer an employer. In this case, I do not take the view that this can have the result that specific deterrence has no role to play at all in penalty, but it is a matter I have taken into account. Attention must also be paid to the defendant's means pursuant to s 6 of the Fines Act 1996. There was evidence that, while solvent, the defendant had a limited ability to meet a fine as at the date of the hearing, but this depended on cash flow and profit, of both the defendant and a related company T&M Engineering Group Pty Limited. The other defendant, T&M (Aust) Pty Limited was thought by Mr Woodgate to be insolvent. Its position cannot, of course, impact on the penalty to be imposed on this defendant. I have taken this evidence into account in order to reduce the penalty which otherwise, would have resulted. As the authorities make clear, a defendant's financial position, while to be taken into account, cannot result in a penalty inappropriate for the offence in question. I am satisfied that the final penalty I have determined appropriately balances these various considerations.

38 The principle of totality must also be applied, as both parties submitted.

39 I am satisfied that the proper penalty which results from these various considerations is $121,500, in each case, a total of $243,000. This must result in each case in final a penalty of $67,500, a total of $135,000.

Orders 40 For all of the reasons given, I find the defendants guilty of the charges pressed and enter convictions accordingly. The defendants are ordered to pay the following penalties, with a moiety to the prosecutor: 1. In Matter Number IRC 3080 of 2002 - $67,500 2. In Matter Number IRC 3082 of 2002 - $67,500

41 The defendants are also ordered to pay the prosecutor's costs, as agreed, or as assessed by the Court. The parties have liberty to approach if they are unable to agree on costs.

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