Inspector Wilkie v Integral Energy Australia

Industrial Relations Commission (NSW)|2005-07-02|Before: Staff J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Wilkie v Integral Energy Australia [2005] NSWIRComm 47

PROSECUTOR Inspector Robert Wilkie PARTIES: DEFENDANT Integral Energy Australia

CATCHWORDS: Occupational Health & Safety - Prosecutions under s 15(1) and 16(1) of the Occupational Health & Safety Act 1983 - Plea of guilty - Employees using woodchipper machines - Risk to health and safety - Foreseeability - Early plea of guilty - Contrition - Prior conviction - Principle of totality - Principle of Consistency - Penalty imposed - Defendant to pay prosecutor's costs of proceedings as agreed or in accordance with rules of court

LEGISLATION CITED: Occupational Health & Safety Act 1983

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 Inspector Wilkie v Batequip Pty Ltd (formerly Bateman Equipment Pty Limited) T/as Ditch Witch Australia [2003] NSWIRComm 111 Inspector Wilkie v Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency [2004] NSWIRComm 166 Inspector Wilkie v Kennards Hire Pty Ltd [2004] NSWIRComm 167 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Winchester (1992) 58 A Crim R 345 State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 WorkCover Authority of New South Wales (Inspector Dubois) v Integral Energy Australia (2002) 113 IR 315 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284

PROSECUTOR Mr P Skinner of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT Mr M Kimber SC Solicitor: Mr P Makin Leigh Virtue & Associates

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 25 February 2005

INSPECTOR ROBERT WILKIE v INTEGRAL ENERGY AUSTRALIA

Prosecution under s 15(1) of the Occupational Health & Safety Act 1983

INSPECTOR ROBERT WILKIE v INTEGRAL ENERGY AUSTRALIA

Prosecution under s 16(1) of the Occupational Health & Safety Act 1983

INSPECTOR ROBERT WILKIE v INTEGRAL ENERGY AUSTRALIA

Prosecution under s 15(1) of the Occupational Health & Safety Act 1983

1 This judgment concerns three prosecutions brought by Robert Wilkie, an Inspector of the WorkCover Authority of New South Wales, that arose out of the use of a Morbark Woodchipper machine on 17 May 2001 and the use of a Brush Bandit Woodchipper machine on 25 May 2001. On 17 May 2001, an employee of the defendant, Mr B Butterfield, who was operating a Morbark Woodchipper had his right hand, arm and body dragged into the machine. Eighty stitches were placed in Mr Butterfield's arm and thirty eight stitches were placed in his head as a result of the injuries he received.

2 The prosecutions were brought pursuant to s 15(1) and 16(1) of the Occupational Health & Safety Act 1983 ("the OH&S Act").

3 On 17 May 2001, a Mr Morgan, who had been subcontracted by the defendant from Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency, was working alongside Mr Butterfield. On 25 May 2001, Mr Morgan was working with Mr Holland, an employee of the defendant.

4 Arising out of what occurred on 17 May 2001, Greater Lithgow Skills Training Incorporated was prosecuted under s 15(1) of the OH&S Act and convicted: see Inspector Wilkie v Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency [2004] NSWIRComm 166.

5 The suppliers of the Morbark Woodchipper used on 17 May 2001 were prosecuted under s 18(1) of the OH&S Act and convicted: see Inspector Wilkie v Batequip Pty Ltd (formerly Bateman Equipment Pty Limited) T/as Ditch Witch Australia [2003] NSWIRComm 111.

6 Kennards Hire Pty Ltd who supplied the Brush Bandit Woodchipper to the defendant which was in operation on 25 May 2001, was prosecuted under s 18(1) of the OH&S Act and convicted: see Inspector Wilkie v Kennards Hire Pty Ltd [2004] NSWIRComm 167.

7 The applications for order in these matters relevantly allege: On 17 May 2001, the Defendant, being an employer at the said site, contrary to section 15(1) of the Occupational Health & Safety Act, 1983 (NSW), failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Barry Butterfield, in that it failed to:- (a) provide or maintain plant, to wit a Model 10 Morbark Woodchipper; Serial Number 4S8SZ131ZVW021391 ("the Morbark machine"), that was safe and without risk to health; (b) provide or maintain a system of work that was safe and without risk to health in relation to the operation of the machine. On 17 May 2001, the Defendant, being an employer at the said site, contrary to section 16(1) of the Occupational Health & Safety Act, 1983 (NSW), failed to ensure that persons not in its employ, and in particular Mr Alan Morgan ("Mr Morgan), were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, in that it failed to:- (a) provide or maintain plant, to wit a Model 10 Morbark Woodchipper, Serial Number 4S8SZ131ZVW021391 ("the Morbark machine"), that was safe and without risk to health; (b) provide or maintain a system of work that was safe and without risk to health in relation to the operation of the machine. On 25 May 2001, the Defendant, being an employer at the said site, contrary to section 15(1) of the Occupational Health & Safety Act, 1983 (NSW), failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Holland, in that it failed to:- (a) provide or maintain plant, to wit a Model 65 Brush Bandit Woodchipper Unit No. 32477 (registration number K41353) ("the Brush Bandit machine"), that was safe and without risk to health; (b) provide or maintain a system of work that was safe and without risk to health in relation to the operation of the machine.

8 The defendant pleaded guilty to each of the charges.

9 The prosecutor tendered an agreed statement of facts in respect of the three matters which contained the following (formal parts omitted):

At all material times the Defendant was in the business of energy distribution with its principal function being to establish, maintain and operate facilities for the distribution of electricity and/or other forms of energy and to supply such electricity or other forms of energy and services relating to the use and conservation of electricity to other persons and bodies ("the undertaking").
Consistent with this purpose, the Defendant at all material times carried out the clearing and chipping of vegetation in the vicinity of overhead power lines at various sites, including a site at Yarran Road, Bargo in the State of New South Wales ("the Bargo site").
At all material times, the Defendant was an employer.
At all material times, the Bargo site was the Defendant's place of work.
The Defendant at all material times employed Mr Barry Butterfield ("Mr Butterfield") as a labourer to undertake the task of chipping vegetation at the Bargo site.
On 17 May 2001 ("the accident date") Mr Butterfield was operating a Model 10 Morbark Woodchipper serial number 4S8SZ131ZFW021391 ("the Morbark machine") at the Bargo site and was feeding vegetation into the Morbark machine.
On the accident date, Mr Butterfield was working with Alan Morgan ("Mr Morgan"), an employee of Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency ("Greater Lithgow"). Mr Morgan had been subcontracted to the Defendant by Greater Lithgow to undertake tasks, including the task of picking up and chipping branches previously cut from the vicinity of overhead powerlines at the Bargo site.
On the accident date, whilst Mr Butterfield was operating the Morbark machine, the glove on his hand become (sic) caught on a branch that was being fed into the machine, dragging Mr Butterfield's right hand, arm and body onto the rotating feed rollers of the machine.
Just prior to the accident, Mr Morgan had fed branches into the in-feed of the Morbark machine and had turned and walked approximately three (3) metres to a pile of branches. Upon picking up a handful of branches and turning towards the machine, Mr Morgan noticed Mr Butterfield's two legs waving from inside the in-feed of the machine.
Mr Morgan was able to assist Mr Butterfield by pulling him out of the Morbark machine.
In the subject accident, Mr Butterfield suffered significant cuts to his arms and to his head. Eighty (80) stitches were placed in Butterfield's arm and thirty eight (38) stitches were placed in his head as a result of the injuries he received.
On the accident date, the in-feed chute of the Morbark machine was insufficiently long to guard against the rapid intake of an operator who had become entangled in material being fed into the machine.
The Morbark machine lacked an easily accessible safety mechanism within the feed chute which would allow an operator who had become entangled in material being fed into the machine quickly to reverse or stop the operation of the in-feed roller.
The Morbark machine lacked an easily accessible safety mechanism accessible from within the feed chute which would allow an operator who had become entangled in material being fed into the machine quickly to reverse or stop the operation of the in-feed roller.
The side guards of the in-feed chute were insufficient to protect against the rapid intake of an operator who had become entangled in material being fed into the Morbark machine.
The side guards of the fold down tray were insufficient to protect against the rapid intake of an operator who had become entangled in material being fed into the machine.
In or around September 1998 when the Defendant had been supplied with the Morbark machine, it has also been supplied with a user manual for the machine. The user manual provided, inter alia, the following information for operators:- "Before anyone starts up a brush chipper they should know this:- ANY MACHINE THAT CAN PULL IN A WHOLE TREE AND CHIP IT IN LESS THAN A MINUTE IS DANGEROUS IF THE OPERATOR DOES NOT FOLLOW PROPER SAFETY PROCEDURES" We have done all we can do to manufacture the safest chipper possible that will do the job it is intended for. But no matter how we build it, IT CAN BE DANGEROUS IF IT IS NOT USED PROPERLY. It is the responsibility of the owner to ensure that the operators are properly trained and that they practice safe chip operating procedures on the job practices".
As at the accident date, the Defendant had not developed any adequate formal safety operating procedures relating to the use of the machine, in addition to the user manual. As at the accident date, whilst Mr Morgan had seen the user manual, and had viewed the safety video referred to in the user manual, Mr Butterfield had not. Both workers had received on the job demonstration about the safe operation of the Morebark (sic) machine.
On the day after the accident date, the Informant issued the Defendant with a Prohibition Notice on the Morbark machine prohibiting the Defendant from using the machine.
Following the accident, the Defendant continued to clear and chip vegetation at various sites. Following the accident, the Defendant made arrangements with Kennards Hire Pty Limited to be supplied with a further Woodchipping machine. Kennards Hire Pty Limited supplied plant for use by persons, to wit a Model 65 Brush Bandit Woodchipper Unit No. 32477 (registration number K41353) ("the Brush Bandit machine") to the Defendant for use by employees and/or subcontractors of Integral Energy at work.
On 25 May 2001 Mr Morgan was operating the Brush Bandit machine at a site located at Oxford Road, Ingleburn in the State of New South Wales ("the Ingleburn site") and was feeding vegetation into the Brush Bandit machine. An employee of Integral Energy, namely David Holland ("Mr Holland") was working with Mr Morgan and was also feeding branches into the Brush Bandit machine.
On 25 May 2001, the in-feed chute of the Brush Bandit machine was insufficiently long to guard against the rapid intake of an operator who had become entangled in material being fed into the machine.
The Brush Bandit machine lacked an easily accessible safety mechanism within the feed chute which would allow an operator who had become entangled in material being fed into the machine quickly to reverse or stop the operation of the in-feed roller.
The Brush Bandit machine lacked an easily accessible safety mechanism accessible from within the feed chute which would allow an operator who had become entangled in material being fed into the machine quickly to reverse or stop the operation of the in-feed roller.
The side guards of the in-feed chute were insufficient to protect against the rapid intake of an operator who had become entangled in material being fed into the Brush Bandit machine.
The side guards of the fold down tray were insufficient to protect against the rapid intake of an operator who had become entangled in material being fed into the Brush Bandit machine.
As at 25 May 2001, the Defendant had not developed any adequate formal safety operating procedures relating to the use of the Brush Bandit machine. As at 25 May 2001, neither Mr Holland nor Mr Morgan had seen the user manual for the Brush Bandit machine. This is despite the accident involving Mr Butterfield and Mr Morgan with the Morbark machine on 17 May 2001.
On 25 May 2001, the Informant issued the Defendant with a Prohibition Notice on the Brush Bandit machine prohibiting the Defendant from using the machine.

10 In addition to the agreed statement of facts, the prosecutor tendered a report by Mr C G Simpson, a consulting engineer, ergonomist and health and safety professional, dated 9 June 2004, relating to his inspection of the Morbark Woodchipper. The report included various photographs of the Morbark machine. Mr Simpson concluded his report as follows: Indeed, but for the intervention of Mr Morgan, it would appear probable that Mr. Butterfield may well have suffered fatal injuries. MODIFICATIONS REQUIRED In the opinion of the writer, as both a professional engineer, ergonomist and occupational health and safety professional, the machine must be extensively modified in order for it to comply with reasonable Industry Safety Standards, with those Standards being those required for the safe operation of the machine. In particular, the infeed chute needs to be modified so that the operator is kept at distances from the feed roller that comply with AS 4024.1:1996 or the applicable International Standards. In this instance the Morbark Model 10 machine would need to have extensions placed on the folding section of the infeed chute so as to provide a physical guard of dimensions that describe a radius of at least 1,400 millimetres from any point of the infeed roll. In addition to the modification of the infeed chute so as to prevent physical contact with the dangerous parts of the machine, the controls of the machine must be modified so as to provide an effective means of emergency stop, with that effective means being capable of being operated by the person faced with the emergency. To this end the "reversing bar" or "safety bar" should be moved rearwards so that it will automatically be engaged to reverse should a person be physically dragged into the machine, i.e. as a person is dragged into the machine via being snagged or otherwise, the body of that person must be dragged against the reversing bar so as to push it forward and reverse the feed mechanism. This could be accomplished, using the current machine, by moving the reversing bar approximately 300 millimetres rearward.

11 A further report by Mr C G Simpson, dated 9 June 2004 in respect of the Brush Bandit Model 65 Woodchipper machine hired from Kennards Hire was tendered. Under the heading "Summary" Mr Simpson stated: Inspection of Bush (sic) Bandit Model 65 machine number 32477, registration number K41353, at the premises of Marriott Tree Equipment indicates that the machine on hire from Kennards Hire Pty. Limited does not comply with the relevant guarding by distance requirements of the relevant Australian, British or International Standards. Indeed, in the unmodified state, it is possible for a person to simply lean over and physically touch the inrunning nip point, which must be regarded as being the primary source of danger with this machine. In order for the infeed chute to meet the abovementioned Standards, it must be effectively increased in length, at the top and at the sides, by at least 620mm.

12 The prosecutor also tendered a certificate of prior convictions showing two prior convictions where penalties of $22,500 and $160,000 respectively were imposed.

13 The evidence of the defendant consisted of an affidavit of Alan Robert Flett, the General Manager, Asset Management of the defendant, who was not required for cross examination. In his affidavit, Mr Flett described the establishment of the defendant in 1996; that it provides retail electricity to 807,000 customers, or 2.1 million people, in households and businesses across a network franchise spanning 24,500 square kilometres in greater western Sydney, the Illawarra, Shoalhaven and the Southern Highlands. The defendant employs approximately 2,300 people and retains the services of sub-contractors on an as needs basis. On any one day the defendant has at least 300 contractors on vegetation management and a further 200 on other activities.

14 In order to provide electricity across the area of distribution, the defendant uses 380,000 poles which are located in all types of terrain and as part of the ongoing maintenance uses teams to clear, where appropriate, vegetation from coming into contact with the electricity wires. The defendant employs eight teams and obtains the services of three contractors who supply another 40 teams. The defendant currently owns two woodchipper machines and contractors provide and use another 20 machines.

15 Mr Flett said that on 17 September 1998, the defendant purchased the Morbark Woodchipper machine from Batequip Pty Ltd. At the time of the purchase, the defendant was advised that the Morbark machine had been inspected by WorkCover and met all Australian Standards requirements, and at that time no risk assessment was required or undertaken. Prior to May 2001 Messrs Butterfield, Holland and Morgan had received training in the safe use of the Morbark machine. Immediately after the accident on 17 May 2001, the Morbark machine was removed from service.

16 Mr Flett stated that such was the volume of required vegetation trimming each day and the defendant's policy of removing such vegetation within 24 hours, to minimise community complaints and in the interests of safety, that the defendant on 23 May 2001 hired from Kennards Hire Pty Ltd a Model 65 Brush Bandit Woodchipper machine. The defendant was led to believe at the time that the Brush Bandit was industry standard, however, on 25 May 2001, WorkCover Inspectors deemed the Brush Bandit unsafe and the machine was immediately taken out of service.

17 As a result of the events of 17 and 25 May 2001, the defendant ceased all woodchipper activities and generated a fax to the Secretary of the Electrical Supply Association of Australia Ltd identifying the incident involving Mr Butterfield and recommending an instant review of all woodchipper machines used in the electrical distribution industry paying particular attention to the guarding thereof. Mr Flett annexed to his affidavit, a copy of this fax. Mr Flett said that the defendant required all workers who were to use a subsequently modified Brush Bandit machine to undergo a training session. This occurred on 27 June 2001. Certificates of workers who undertook the training were annexed to Mr Flett's affidavit.

18 Mr Flett said that the defendant was conscious of its obligations to workers and had pursued an active occupational health and safety policy. The policy is constantly under review and upgraded. It was reviewed on 23 December 2004. The energy Safety Management Systems (SMS) were detailed. Safety issues are carefully monitored through weekly Executive Meetings, fortnightly Network Management Meetings, monthly Joint Consultative Committees and quarterly Safety Leaders Forums. The effectiveness of the SMS and Network Management is monitored by appropriate levels of technical and safety related audits and inspections. The OHS group perform these audits and inspections, and provide feedback for corrective actions to be implemented. All senior managers and line managers are responsible for the management of incidents and accidents in accordance with policies and procedures under the SMS.

19 On 11 August 2001, the defendant revised its protocols for the purchasing of goods and services. The protocol required all purchases to be the subject of a risk assessment so as to ensure that all equipment, plant, services and substances purchased by the defendant were safe, without risk to health and without risk to the environment.

20 The protocols have as their centerpiece, occupational health and safety risk and environmental assessments. Copies of these protocols were annexed to Mr Flett's affidavit.

21 As an illustration of the defendant's ongoing commitment to health and safety, Mr Flett said that prior to purchasing replacement woodchipper machines in mid 2003, the defendant researched the market in relation to the standard safety features offered on woodchippers. The only safety features offered on some machines were shut off bars on the top and sides of the feeder chute. Others offered pull cords with the same shut off feature. Another model provided shut off bars at the base of the chute at about the operator's knee level. The defendant selected a machine which offered the additional safety feature of knee height mounted shut off bars. A copy of the risk assessment in relation to this machine was provided together with training attendance and evaluation sheets prepared by employees required to operate the machine.

22 Mr Flett stated that the defendant had investigated the possibility of incorporating such things as light beam systems, infra red systems, magnetic systems or radio high frequency systems into woodchipping operations as part of its continuing research and development. Its safety committee has also identified a Kevlar chainsaw glove as being more suitable for woodchipping work than the general issue gloves previously used because the chainsaw gloves fit more closely around the wrists. The defendant has subsequently issued only chainsaw gloves to workers undertaking woodchipping work.

23 Mr Flett said that the safety performance of the defendant had been the subject of annual review by the WorkCover Authority of New South Wales as part of its processes when considering the renewal of the defendant's self insurance licence for the purposes of workers' compensation. The defendant has received satisfactory outcomes in each of these reviews.

24 After the accident, the defendant offered counselling services to all staff involved, as well as to Mr Butterfield's family and to persons who may have witnessed the incident on 17 May 2001. Assistance was also provided to Mrs Butterfield in respect of home care and transport. Mr Flett said that the two prior breaches of the OH&S Act did not involve a woodchipper machine.

25 Mr P Skinner, counsel for the prosecutor commenced his submissions by referring to the principles of totality. Counsel referred in particular to decisions of Full Benches of this Court in Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 and Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270. Mr Skinner acknowledged that there were parallel charges brought against the defendant and conceded that that would lead to the Court discounting any ultimate penalty.

26 Mr Skinner submitted that it was a matter for the Court whether the offences which occurred on 17 and 25 May 2001 could be treated as part of the same course of conduct. If so, Mr Skinner accepted that it could be argued that there was a basis for a reduction in the penalties to be imposed by the Court.

27 Reference was also made to the issue of parity with Mr Skinner referring to the related matters of Kennards Hire where the Court imposed a penalty of $68,250, Greater Lithgow Skills Training Incorporated where penalties of $25,000 in respect of two charges under s 15(1) of the OH&S Act were imposed and Batequip Pty Ltd where a penalty of $45,500 was imposed. In both Greater Lithgow Skills Training and Batequip, the defendants had no prior convictions.

28 In dealing with foreseeability, Mr Skinner submitted that the woodchipper machines were inherently dangerous, as found by Boland J in Batequip Pty Ltd at [9].

29 Mr Skinner acknowledged that the defendant had selected a new woodchipper machine. However, he submitted that any penalty should include a component for both special and general deterrence.

30 The prosecution seeks a moiety of the fine and costs.

31 Mr M Kimber SC appeared for the defendant. Mr Kimber's submissions may be summarised as follows:

· The defendant is a large organisation with an impeccable safety record. It has not previously or since been before a court in respect of offences involving woodchipper machines.

· In respect of the objective seriousness of the offence, there had only been injuries caused to one employee on 17 May 2001.

· Penalties imposed in other matters before the court involving woodchipper machines should be used as guidance in determining an appropriate penalty in these matters.

32 In addition to the cases referred to by Mr Skinner, involving woodchipper machines, Mr Kimber referred to the following cases:

· Inspector Lyons v Active Tree Services Contracting Pty Ltd [2002] NSWIRComm 311 where a penalty of $55,250, after a discount of 35% was imposed after Peterson J heard a plea in respect of a s 15(1) charge with the defendant having no prior conviction. · WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57 where a fine of $130,000 for two breaches of s 15(1) was reduced to $90,000 after applying the principles of totality resulting in a fine of $45,000 for each matter. In that case a worker suffered the traumatic amputation of both arms. · WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50. This was an appeal from a decision of Marks J acquitting the defendant. The appeal was upheld. The penalty imposed was $30,000 but the penalty was fixed having regard to the impecuniosity of the defendant and the element of double jeopardy arising from a successful prosecution appeal.

33 Reference was made to a finding of Kavanagh J in WorkCover Authority of New South Wales (Inspector Dubois) v Integral Energy Australia (2002) 113 IR 315 at [24] where her Honour said: [24] Throughout the history of the defendant's operations the only prior conviction under the Occupational Health and Safety Legislation is that recorded on 3 September 2001 for a breach under s15(1) of the Act. The charge was pursued by the WorkCover Authority of New South Wales before the Chief Industrial Magistrate. A penalty of $22,500 was applied to that breach. Notwithstanding that clear breach of its obligations, this must be perceived as a fine industrial record for an organisation operating with a large number of employees over a long period of time in a high risk occupation.

34 Her Honour went on to find at [29] that the defendant had a "commitment" and "great emphasis on safe working". Mr Kimber acknowledged that although the assessment has turned out to be incorrect, the conduct of the defendant could not be regarded as reckless, submitting the conduct was an aberration. The defendant had relied on a WorkCover evaluation of the Morbark machine in 1998 that had been provided by the supplier of the machine. This, it was submitted, bears on the culpability of the defendant.

35 Senior counsel submitted the defendant took immediate steps to withdraw the machine from operation and introduced additional training. In light of the steps outlined by Mr Flett in respect of the use of woodchipper machines, it was submitted that the risk of re-offending was extremely small. Mr Kimber pointed to the defendant's co-operation with WorkCover, its contrition and that the offences arose out of the one event.

Principles Applicable to Sentencing under the OH&S Act

36 The general principles to be applied in sentencing offenders under the Occupational Health & Safety Act are well established and are set out comprehensively in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. See also Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at [53]; State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at 230; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 297 and WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60.

37 The primary factor in assessing the level of penalty to be imposed is the objective seriousness of the offence. The Full Bench in Lawrenson Diecasting stated at 475: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

38 As Wright J, President observed in Yass Shire Council at [27]: 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 the 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. In terms of general sentencing policy and as required by s 6 of the Fines Act 1996, the Court is required to consider the means of the defendant in terms of such information as is reasonably and practicably available to the Court for this purpose.

39 I propose to apply the principles as summarised, and as elaborated upon in the judgments referred to above, for the purposes of assessing penalty in this matter.

40 The defendant in this matter has pleaded guilty to the charges which, in essence, were that it failed to provide a Morbark Woodchipper that was safe and without risk to health and to provide or maintain a system of work that was safe and without risk to health in relation to the operation of that machine and also in respect of a Model 65 Brush Bandit Woodchipper machine.

41 There is no dispute between the parties as to how the accident involving Mr Butterfield and the Morbark machine occurred on 17 May 2001. No accident occurred in respect of the operation of the Brush Bandit machine on 25 May 2001. In my view, the defendant was entirely correct in deciding to enter pleas of guilty in these matters. It is inevitable that it would have been convicted if it had decided to contest the proceedings.

42 It is plain from the authorities (referred to below) that the Act imposes obligations on employers to ensure, in the sense of "guaranteeing, securing or making certain" the "health, safety and welfare at work" of the employer's employees, and imposes the requirement on the employer to: Exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety in the workplace.

43 It is essential that the approach should be pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate so far as reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: see Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470; WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85 and Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210.

44 In Greater Lithgow Skills Training Incorporated at [41] I found: The Morbark Woodchipper and the Model 65 Brush Bandit Woodchipper are inherently dangerous machines. This is recognised by the warning signs on the side of the machines, one showing a person being dragged by the arm into the machine, the other a hand being dragged into the machine.

45 Later, at [43] I found: ... it is foreseeable that a person wearing gloves would be caught and dragged into the machine due to the fact that the in feed chute of the machine was insufficiently long and the machine lacked an easily accessible safety mechanism.

46 Mr Kimber did not cavil with these findings or with the conclusions and recommendations in Mr Simpson's report.

47 The defendant, in relation to the assessment of the gravity of the offences, relied upon what it was told by Batequip at the time of purchasing the machine which was to the effect that the Morbark machine had been inspected by WorkCover and met all Australian Standards requirements and at that time no risk assessment was required or undertaken.

48 In Kennards Hire Pty Ltd the defendant raised the culpability of an absent party in sentencing. In that matter, the defendants relied upon various services and advice regarding safety in respect of the Brush Bandit Woodchipper from a third party. After reviewing the authorities that had considered this issue, I found at [35] as follows: [35] In this matter, it is not appropriate to embark upon an enquiry as to whether the prosecution could have been commenced against Marriotts. To attempt to assess Marriott's culpability would be to fall into error. However, I agree with the defendant's submissions that it should receive some recognition, when assessing the objective seriousness of the offence, that Marriotts played a significant part in the offence.

49 Mr Kimber sought to apply that reasoning to this matter in respect of the role played by Batequip submitting that the defendant had not had reckless disregard to its obligation in respect of health and safety when it purchased the Morbark machine. I agree with this submission and I will take it into account when assessing the objective seriousness of the offence.

50 However, once the factors relied on by the defendant to mitigate the objective seriousness of the offence are considered in the appropriate perspective, it is plain that the gravity of the offence was great. The seriousness of the breach of the Act is demonstrated clearly by the seriousness of the injuries suffered by Mr Butterfield. As Mr Simpson observed, but for the intervention of Mr Morgan, Mr Butterfield may have suffered fatal injuries. The machines used by the employees in the circumstances were dangerous and foreseeably so.

51 The defendant is entitled to rely upon all of the subjective considerations that have been put forward on its behalf. These include the size and nature of the defendant; a finding by Kavanagh J in WorkCover Authority v Integral Energy of "a fine industrial record for an organisation operating with a large number of employees over a long period of time in a high risk occupation". However, I note that this finding was made when considering the defendant's history prior to sentencing the defendant for a breach of s 15(1) of the OH&S Act. That matter related to two employees of the defendant suffering severe electrical burns which resulted in one employee losing his right arm to mid forearm. Her Honour imposed a penalty of $160,000. It also relies upon taking appropriate steps after the accident and co-operating fully with the relevant authorities, including the WorkCover Authority.

52 The defendant is entitled to credit for its early plea of guilty, although, the inevitability of a conviction if it had contested the proceedings does mean that any degree of leniency that can be afforded will be diminished: R v Winchester (1992) 58 A Crim R 345 at 350.

53 It should, however, have the benefit of the important utilitarian considerations arising from the plea which will have a mitigating effect on the sentence which would otherwise be imposed. Furthermore, Mr Kimber drew the Court's attention to the comments made by the Full Court in Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 at 456 - 457 where their Honours said: We think that, having regard to the specific nature of the legislation, the past record upon which both the prosecution and defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.

54 It is also entitled to rely upon its demonstrated contrition referred to in the evidence of Mr Flett as to the assistance provided to the injured worker and/or his family subsequent to the accident. This is a relevant consideration in mitigation as to penalty and a true reflection of contrition from the defendant. Having due regard to the various mitigating features to which I have referred, I would therefore allow a discount of 25% for the early plea of guilty and a further discount of 10% for the other subjective factors to which I have referred.

55 It is important to give appropriate weight to the objective seriousness of the offence, bearing in mind the inherently unsafe system that was in place, that the risk was obvious and that the risk was entirely foreseeable.

56 In imposing a penalty in this matter, regard must be had to general and specific deterrence. In Capral Aluminium Limited the Full Court said in referring to both general and specific deterrence at [74]: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

57 Later, at [77] the Full Bench said: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

58 The evidence discloses that the defendant immediately removed the Morbark machine from service after the accident on 17 May 2001. The Brush Bandit machine which was obtained from Kennards Hire Pty Ltd, in the belief that it was industry standard, was immediately taken out of service when deemed unsafe by WorkCover inspectors on 25 May 2001. The defendant faxed the Electrical Supply Association of Australia recommending an instant review of all woodchipper machines used in the electrical distribution industry, paying particular attention to the guarding. All workers who were to use the machines in the future were required to undergo a further training session. In addition, the defendant upgraded its safety management systems and protocols. The defendant has also investigated the possibility of incorporating light beam systems, or infra red systems, in respect of the operation of these machines, as part of its continuing research and development. Its safety committee identified a more suitable glove to be worn when operating woodchipper machines. I take these steps into account in respect of specific deterrence. However, as the defendant is engaged in an ongoing business, I propose to include a modest factor for specific deterrence.

59 The question arises as to the weight to be given to general deterrence in the sentencing process. The relevant principle was stated by the Full Bench in Capral Aluminium at [71] - [80], namely, that the important consideration is to set the penalty at a level that will not simply operate as a deterrence but that is not so high as to be oppressive.

60 Boland J in Batequip Pty Limited, said at [13]: Designers, manufacturers and suppliers of these types of machines need to be made aware that either a particular standard has to be met or if that is not achievable (and I cannot understand why that could not be achieved) they need to be educated about the fact that machines such as the Morbark model 10 in its original configuration present a serious risk to the operator's safety. As it was said in WorkCover Authority (Inspector Barber) v Softwood Holdings Ltd t/as CSR Timber Products (1999) 89 IR 40 at 46: Part of the purpose of penalty is deterrence. In so far as other employers are concerned however, real and effective attention will only be drawn to the type of care which they must take ... if adequate publicity is given to accidents and the results of prosecutions ... Such publicity properly falls to the prosecuting WorkCover Authority and it is to be encouraged.

61 I respectfully agree with his Honour's observations and would add in respect of these matters that the Act imposes an absolute obligation on employers to ensure the health and safety of their employees. It is therefore the question of general deterrence which will play a significant role in the exercise of my discretion.

62 The prosecutor submitted that the maximum penalty under the Act for each charge was $825,000 as the prior conviction brings into effect s 51A of the Act which provides for the imposition of an additional penalty after a prior offence has been recorded against a defendant.

63 In Greater Lithgow Skills Training, I determined that as the offences arose out of the same factual matrix, despite being separated by eight days, I intended to record convictions simultaneously. Mr Kimber urged me to adopt the same approach in respect of this matter. The position in this matter is significantly different from that which I considered in Greater Lithgow Skills Training. Here the defendant has two prior convictions which automatically triggers s 51A. However, as the offences arose out of the same factual matrix, there was a substantial overlap between the failures and the three offences were effectively prosecuted as one. I propose to record the convictions simultaneously.

64 In the present matter, the factual circumstances giving rise to the charges against the defendant are identical to charges brought against Greater Lithgow Skills Training Incorporated and similar, albeit, a different section of the OH&S Act to charges brought against Batequip Pty Ltd and Kennards Hire Pty Ltd. In those circumstances, it is appropriate that I compare the respective sentences imposed on each defendant to ensure the principle of consistency is not violated, making due allowance for relevant differences in their levels of culpability. Although Mr Skinner referred to the principle of parity, which in my view, does not arise in this matter, Mr Kimber made submissions directed to the principle of consistency. In Capral the Full Bench observed at [62] - [63]: [62] It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and this is not relevant in this matter. ... [63] When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said (at 371): "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.' " 65 Their Honours observed at [66]: [66] The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice: see, for example, R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: "12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610 - 611: 'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.' " and see also R v Howland (1999) 104 A Crim R 273 per Spigelman CJ.

66 The assessment of each of the offences is to be approached in the terms set out in Pearce v The Queen (1998) 194 CLR 610 at [45] - [46] where the High Court 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 (1998) 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.

67 It is therefore necessary to assess the appropriate penalty in relation to each charge and then apply the principle of totality. In my view, each charge should be regarded as equally serious. Each charge refers to a woodchipper machine and is limited to a system or method of work.

68 Allowing for a discount of 35% in each matter, I determine the appropriate penalty, in relation to the charge in matter No IRC 2595 of 2003 is $90,000. The penalty in relation to IRC 2596 of 2003 should also be $90,000 as should the penalty in relation to the charge numbered IRC 2597 of 2003 be $90,000.

69 The principle of totality, as discussed in Pearce v The Queen, then requires consideration of the overall culpability or criminality attributable to the defendant from each of the convictions, and in that process, ensuring that there is no "double counting" of the culpability of the defendant, from the respective offences. Approaching the matter in that way, I consider the overall culpability of the defendant, (bearing in mind the significant practical overlap between the three offences, and the aggregate culpability arising from the effect of each of the breaches occurring within the same time frame) would result in a total fine of $270,000. I consider the total fine should be reduced to $150,000. Having regard to the separate assessments of culpability of the defendant in relation to each offence, fines of $50,000 should be imposed in each matter.

The defendant is convicted of the two offences alleged under s 15(1) and the offence alleged under s 16(1) of the OH&S Act 1983.

In matter No IRC 2595 of 2003 the defendant is fined the sum of $50,000 with a moiety of that fine to the prosecutor.

In matter No IRC 2596 of 2003 the defendant is fined the sum of $50,000 with a moiety of that fine to the prosecutor.

In matter No IRC 2597 of 2003 the defendant is fined the sum of $50,000 with a moiety of that fine to the prosecutor.

The defendant shall pay the prosecutor's costs of these proceedings in the sum as agreed or, in default of agreement, as assessed.

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