Inspector Williams v H P Woods

Catchwords

(2008) 184 IR 1 Kirk v Industrial Relations Commission [2010] HCA 1(2010) 239 CLR 531 Morrison v Centennial Coal Company Ltd [2010] NSWIRComm 4 Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297(2004) 137 IR 253 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61(2005) 147 IR 117 O'Sullivan v Crown in the Right of the State of New South Wales (Department of Education & Training) [2003] NSWIRComm 74(2003) 125 IR 361 R v Sharma [2002] NSWCCA 142(2002) 54 NSWLR 300 R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383 Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108(2002) 115 IR 78 Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153(2009) 188 IR 79 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198(2005) 143 IR 57 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277(2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64(2002) 172 IR 210 WorkCover Authority (NSW) (Inspector Ching) v Bros Bins System Pty Ltd [2009] NSWIRComm 155

Judgment (25 paragraphs)

[1]

153 IR 409 WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; (2008) 172 IR 210 WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 Workcover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecution) H P Woods (Holding) Pty Ltd (Defendant) Representation: C T Magee of counsel (Prosecution) M J Cranitch SC (Defendant) WorkCover Authority of New South Wales (Prosecution) Campbell Paton & Taylor (Defendant) File Number(s): IRC 1423 of 2010 Publication restriction: None

[2]

Judgment 1These proceedings involve a prosecution instituted by Inspector Tony Williams against H P Woods (Holding) Pty Ltd . Inspector Williams is an inspector of the WorkCover Authority of New South Wales and is authorised by s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute proceedings. 2H P Woods (Holding) Pty Ltd is a corporation whose registered office is situated at 1 Blackett Street, Forbes in the State of New South Wales. It is a holding company of a small number of companies that participate in the business of cattle, sheep, crop and hay farming, including cropping and fencing. It employs 20 people. 3Associated Produce Co Pty Ltd ("Associated Produce") is a wholly owned subsidiary of H P Woods (Holding) Pty Ltd, and is duly incorporated in Australia, with its registered office being the same as H P Woods (Holding) Pty Ltd. The two companies have the same directors. It is a rural enterprise. 4Associated Produce is the owner of 'Burratoo Station' which is situated approximately 43 kilometres south west of Forbes on the South Condobolin Road. The business of Burratoo Station involved mixed farming including cropping and raising livestock such as sheep. 5H P Woods (Holding) Pty Ltd is the defendant in the proceedings. 6The prosecution arose following a fatal incident on 5 December 2008 at Burratoo Station involving an employee of the defendant, Phillipa Macey. Ms Macey was a casual farm hand aged 19 years. She had completed an Agricultural Cadetship in 2007, which was a two year course that she undertook on a part-time basis whilst working in the agricultural industry. 7Ms Macey and another employee, Mr Barton, were undertaking the task of drenching sheep. The task involved sheep being brought from a paddock at Burratoo Station , being drenched at the sheep yards and then returned by Ms Macey to 'Billy's Paddock' via 'Sam's Orchard'. 8Sam's Orchard was 350 acres in size and at the time of incident was dry, featureless and cracked, with little grass. It had a boundary fence to the south running in an east/west direction. Sam's Orchard is separated from the adjoining Billy's Paddock by a ring lock fence. A rough dirt track traversed Sam's Orchard in an east/west alignment ("the track"). The track consisted of wheel tracks compacted into the soil by the usage of vehicles over time, with no base or formation. The track followed the fence line (approximately 5 metres to the north of the fence). The track was commonly used to travel across Sam's Orchard to Billy's Paddock. 9A concrete irrigation pipe ran partially under the track in Sam's Orchard and an exposed section of the irrigation pipe protruded from the ground on the north side of that track. There were no marking or signs indicating the location of the concrete pipe or indicating the area of the crossing of the concrete irrigation pipe on the track. There were no markings or signs to indicate the edge of the track or the channel. 10At around 5 pm on the day of the incident, Ms Macey was riding across Sam's Orchard. She was returning from drenching sheep when she failed to negotiate the channel crossing at the track and struck an exposed section of the concrete irrigation pipe with a front wheel resulting in her losing control and rolling. Ms Macey was driving a Yamaha All Terrain Vehicle (Model No. YFM350 'Grizzly') ("the ATV"). The ATV was usually used for stock work and spraying. 11The normal route Ms Macey travelled, whilst traversing Sam's Orchard was along the track. However, the route taken by Ms Macey on 5 December 2008 (which led to the point of collision with the irrigation pipe) was slightly different. The track Ms Macey had been following travelled from the north and curved to then travel in a straight direction from east to west. The exposed section of irrigation pipe protruded to the north of the track as the track curved. Ms Macey deviated from the line of the track by cutting the corner and taking the corner to the north, off the track. As she came around the bend, the ATV struck the exposed section of the pipe with its right wheel and then began a sharp roll to the left. Ms Macey was travelling at a speed of about 35 to 46 kilometres per hour at the time of the incident. 12The resultant serious head injuries suffered by Ms Macey led to her death. 13Ms Macey was not wearing a helmet. She was wearing usual work apparel, including shoes, long sleeved shirt, a broad rimmed hat and three-quarter length trousers. 14The ATV Owners' Manual required that helmets be worn at all times. The ATV had affixed a clearly marked manufacturer's plate which stated "always use an approved helmet and protective gear". The relevant standard of helmet in Australia for ATVs is AS/NZS 1698, Protective helmets for vehicle users. The standard defines the minimum protective, coverage, retention and attenuation requirements for a motorcycle helmet. 15The charges brought against the defendant will be described in more detail below. The charge has been laid under s 8(1) of the Act. The defendant entered a plea of guilty to the charge brought against it. 16In addition to Ms Macey, the defendant's other employees were particularised as being at risk. The risk was suffering an injury, including a serious head injury, when operating an ATV whilst not wearing adequate personal protective equipment including a protective helmet at the premises. The failures of the defendant particularised variously concerned a failure to require that employees at all times when operating an ATV wear a protective helmet conforming with AS/NZS 1698:2006 Protective helmets for vehicle users; a failure to prepare a documented Safe Work Method Statement ("SWMS") procedure in relation to the use and operation of ATVs on the premises by its employees which included a requirement that personal protective equipment, including protective helmets consistent with AS/NZS 1698:2006 Protective helmets for vehicle users, be worn by its employees when operating ATVs on the premises; a failure to provide to employees a documented SWMS procedure and training in the SWMS in relation to the use and operation of ATVs on the premises by its employees; and a failure to provide employees with information, instruction and training that it was a mandatory requirement that personal protective equipment including protective helmets consistent with AS/NZS 1698:2006 Protective helmets for vehicle users were worn by its employees when operating ATVs on the premises. 17The central component of the charge was the failure of the defendant to have in place a measure which required its employees to wear a helmet consistent with the Australian standard. The prosecutor stated that the charge was confined to avoiding the risk, arising from employees of the defendant driving an ATV, by means of employees being required to wear a helmet. That is, an identifiable risk should have been obviated by measures consisting of the imposition by the defendant of a requirement to use the helmet at all times where an employee operated an ATV and the taking of steps to give effect to that requirement via SWMS, information, instruction and training. To be clear, other considerations such as the absence of Roll Over Protection for the ATV or hazard signage in Sam's Orchard were not incorporated within the charge and did not form not part of the prosecution's case. They shall not be taken into account in sentencing. 18At the time of and leading up to the incident, the defendant had an occupational health and safety policy (revised approximately every six months) which was the responsibility of Mr Cantwell, the defendant's Farm and OHS Manager. According to the agreed statement of facts, there was some non-documented induction by which the defendant's health and safety policy was explained to employees. In fact, Ms Macey received induction training from Mr Cantwell at the commencement of employment. The defendant had the practice that Mr Cantwell would "check" and ask whether the employee had experience in operating the equipment as a measure of assessing the employee's competence for the safe operation of ATVs on the property. 19The defendant did not have documented SWMS for the use and operation of ATVs at Burratoo Station. However, it had undertaken a risk assessment for the wearing of helmets on motorbikes and ATVs. 20The defendant had helmets available for use when operating ATVs or motorbikes. It was not, however, a mandatory requirement that employees wear them. Employees were informed that helmets were available if employees chose to wear them. On the evidence, the wearing of helmets was required when employees were to undertake aggressive riding. The defendant's policy on helmets, following a risk assessment with regards to ATVs prior to the incident, was that, because for the majority of the time ATVs were operated at walking pace or for tasks that required them to be driven less aggressively, helmets were considered likely to be restrictive, irritating or uncomfortable and present a risk of heat stroke. As most tasks concerning the use of ATVs were not considered by the defendant to be a high risk, it perceived that a greater risk was posed to employees by the rays of the sun and of skin cancer. As a result, when not undertaking aggressive riding, employees wore wide brimmed hats. 21After the incident, the defendant was issued with Improvement Notice (No: 7-172571) to develop, implement and maintain systems to ensure the wearing of appropriate PPE, including an approved motorcycle helmet, whilst operating ATVs at the place of work. In response to this notice, the defendant made it compulsory for all employees at the property to wear helmets whilst operating ATVs at the premises. 22It is suffice, at this juncture, to provide below a short summary of the parties' positions as to the charge of not requiring employees, and in particular Ms Macey, to wear personal protective equipment, including a protective helmet at the premises. 23The prosecutor contended that the defendant had failed to provide a safe system of work by failing to require, at all times when operating an ATV, that employees wear protective helmets conforming with the AS/NZS 1698:2006 standard. It was further submitted that the defendant did not provide training, instruction or information. The defendant, whilst accepting by their plea the particulars of the charge, submitted that as a factor mitigating the seriousness of the offence it should be taken into account that it was not clear that the measure of a helmet would have obviated Ms Macey's fatality. The defendant's own risk assessment had concluded that the sun was a greater risk of harm to employees than other risks in most uses of the ATV. It was contended that the risk of harm in the particular case was remote because the irrigation pipe with which the ATV collided was a clearly visible obstacle in the denuded field.

[3]

The Charges 24The defendant was charged with one breach of s 8(1) of the Act. The charge was set out in the application for order in the following terms: I, Inspector Tony Williams, of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter allege that H.P. WOODS (HOLDING) PTY LTD (ACN 000 205 3900 ("a defendant"), a corporation with its registered office at 1 Blackett Street, Forbes in the State of New South Wales, being an employer, on 5 December 2008, at Burratoo Station, South Condobolin Road, approximately 52 kilometres from Forbes (S 33 22.142 E 147 28.209), in the State of New South Wales ("premises") FAILED BY ITS ACT AND OMISSIONS as particularised below to ensure the health, safety and welfare at work of all its employees, and in particular Phillipa Ann Macey, contrary to section 8(1) of the Occupational Health and Safety Act 2000 (NSW). 25The particulars of the charge were specified as follows: Particulars of the risk

There was a risk to the health, safety and welfare of the defendant's employees, and in particular Phillipa Ann Macey, of suffering an injury, including serious head injury, whilst operating an All Terrain Vehicle ("ATV") whilst not wearing adequate personal protective equipment including a protective helmet at the premises.
The defendant, as a consequence of failing to take the measures particularised below, exposed its employees and particular Phillipa Ann Macey, to the risk by allowing Phillipa Macey to operate the ATV whilst not wearing adequate personal protective equipment including a protective helmet at the premises. Particulars of the defendant's failing in relation to the system of work:
The defendant failed to provide and maintain a safe system of work for the operation of ATVs at the premises in that it failed to undertake measures including: a. requiring that employees at all times when operating an ATV wear a protective helmet conforming with AS/NZS 1698:2006 Protective helmets for vehicle users; b. the preparation of a documented Safe Work Method Statement ("SWMS") procedure in relation to the use and operation of ATVs on the premises by its employees that included a requirement that personal protective equipment including protective helmets consistent with AS/NZS 1698:2006 Protective helmets for vehicle users be worn by its employees when operating an ATVs (sic) on the premises; Particulars of the defendant's failings in relation to information, instruction and training:

[4]

Agreed Statement of Facts 26An agreed statement of facts was tendered and was in the following terms:

At all material times the Prosecutor, Inspector Tony Williams was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter.
H. P. WOODS (HOLDING) PTY LTD (ACN 000 205 390 ) ("the defendant") is and was at all material times a corporation whose registered office is situated at 1 Blackett Street, Forbes in the State of New South Wales . The parties
At all material times H.P. Woods (Holding) Pty Ltd (ACN 000 205 390) ("the defendant") , was an employer.
At all material times the defendant undertook the business of farming predominantly involving mixed farming, including livestock, cropping and fencing.
The defendant is the parent company of a small number of associated businesses, one of which is Associated Produce Co Pty Ltd ("Associated Produce"). Associated Produce is the owner of 'Burratoo Station'.
At all material times, the defendant employed, Phillipa Ann MACEY (D.O.B. 4 June 1989) ("Phillipa Macey") as a casual farm hand.
The defendant also employed: Mr Ray Scott, as Director Matthew Barton, as a Farmhand Michael Cantwell, as a Farm and OHS Manager Adam Leslie, as the Farm Overseer Andrew Little, as a Mechanic
At all material times Mr Ray Scott was a Director of the defendant. The defendant has two other directors, Colin Leslie Woods and Michael Rendell.
Colin Lesllie Woods is a silent director and Michael Rendell is the accountant for the defendant.
The defendant and Associated Produce have the same directors.
Michael Cantwell was the Farm and OHS Manager at the premises. He had worked on the property for approximately 3 and half years prior to the incident. His duties included staff organisation, operations management livestock and machinery management.
Matthew Barton was the Farmhand and partner of Phillipa Macey. His work duties extended to all aspects of faming from driving tractors to spraying and fencing.
Phillipa Macey had completed an Agricultural Cadetship in 2007, which was a two-year course that she undertook on a part time basis whilst also working in the agricultural industry.

[5]

Verdict 27Having regard to the charge in this matter, the particulars of the offence, the agreed statement of facts and the evidence tendered in the proceedings, I accept the plea of guilty by the defendant and will enter a verdict accordingly.

[6]

Submissions for the Prosecution 28Mr C Magee of counsel who appeared on behalf of the prosecutor, made oral and written submissions, which taken together can be summarised as follows:

[7]

Objective Factors (1) The proper consideration of subjective matters rank in importance well behind the nature and quality of the offence, and the policy of the Act in relation to the establishment of safe standards and the protection of the workforce. (2) Accordingly, the sentence to be given to the defendant must be proportionate to the gravity of the offence considered in the light of the objective circumstances. (3) To clarify the offence, counsel submitted that the gravamen of the offence was the failure to require the wearing of a proper helmet consistent with the appropriate standard as part of the system of work on the site. Those systems could have been established by means of the provision of information, instruction or training, a safe work method statement or simply a directive that would require employees to wear compliant helmets. (4) There was a causal nexus between the defendant's breach and the risk to the employee's safety. (5) Had any or all of the measures set out in charge been undertaken by the defendant they would have eliminated or reduced the risk that manifested itself in relation to the incident. (6) The risk to persons of injury from a crash, fall or roll over of an ATV was foreseeable one. (7) The fact that ATVs were used by employees, including Ms Macey, at speeds of approximately 40 kilometres per hour across featureless paddocks while in the vicinity of livestock, drainage channels and irrigation pipes created an obvious risk. (8) The risk of injury from a crash, roll over or fall in such circumstances was clearly foreseeable. The risk of injury from the use of ATVs on rural properties, including fatalities, is generally well known, and should have been foreseeable to the defendant. (9) Further, the fact that the defendant had prior to the incident undertaken a risk assessment for the wearing of helmets on motorbikes and had helmets available for use at the premises demonstrated its awareness of the risk and the need to put in place measures to avoid the risk. (10) The general risk of injury from the use of ATVs was one against which appropriate measures were not taken, even though such measures were available and feasible. (11) The gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. (12) The offence is a serious offence one where the work performed involved a significant risk of injury. Death was not a remote possibility. (13) The potential risk of significant injury was not a remote possibility in the circumstances of this matter. (14) Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved a grave risk of death to another person or persons is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. (15) In light of the foregoing objective factors, the Court should regard the breaches as objectively serious ones.

[8]

Maximum Penalty (16) In Workcover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 (at 185 - 186), Wright J stated: The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worse for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislation from zero to maximum: Camilleri Stock Feeds Pty Ltd v. Environmental Protection Authority (1993) 32 NSWLR 683 at 698-699, Nesmat Pty Ltd v. WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Auburn City Council (at 407 - 408)." (17) As this was the first offence by the defendant under the Act, the maximum penalty for the offence in this matter is $550,000.

[9]

Need for Deterrence (18) In fixing an appropriate sentence the Court had to consider specific and general deterrence. (19) In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an accident is relevant. The propensity for the defendant to re-offend is also relevant. (20) There was evidence before the Court of the limited systems that the defendant had in place in relation to safety. It is apparent that the systems were informal and that there was a failure to ensure the use of helmets. There was, however, evidence of steps the defendant had taken to improve its systems since the incident. (21) The defendant continued to operate its business, and its employees continued to utilise motorcycles and ATVs in undertaking their duties at the premises. Hence, specific deterrence should feature in the penalty fixed by the Court. (22) The sentence should also include an element relating to general deterrence. In particular, the sentence should reflect the need to deter others, particularly in rural industries, from failing to take a rigorous approach to ensuring that known hazards from the use of ATVs are rectified, and that systems are carefully monitored to ensure work using these vehicles is undertaken in a safe manner.

[10]

Subjective Features (23) The defendant is entitled to have considered any subjective matters put forward in assessing the level of penalty to be imposed. However, subjective matters are secondary and of limited importance in the sentencing process. (24) The Court should ensure that the allowance of subject factors does not produce a sentence which fails to take into account the objective gravity of the offences.

[11]

Plea of Guilty (25) The relevant subjective considerations include the plea of guilty. The defendant entered a plea of guilty at an early stage of the proceedings. (26) Although the plea of guilty was not entered at the earliest possible time (it was entered at the third directions hearing), the prosecutor accepted that it was open for the Court to conclude that the defendant's plea of guilty would entitle it to a discount for the utilitarian value of the guilty plea based upon the plea being entered at the earliest opportunity.

[12]

Co-operation (27) The defendant co-operated with WorkCover during the investigation.

[13]

Prior Convictions (28) The defendant has no prior convictions in New South Wales under occupational health and safety legislation.

[14]

Conviction (29) The offence should be found proven and the defendant should be convicted and fined accordingly.

[15]

Moiety of Fine (30) The prosecutor seeks a moiety of any fine for the WorkCover Authority of New South Wales.

[16]

Costs (31) The prosecutor seeks its reasonable costs and disbursements in a sum as agreed or assessed.

[17]

Submissions for the Defendant 29Mr M Cranitch of senior counsel made, in summary, the following oral submissions: 1.This matter concerns an 'equipment case', and, in particular, the failure to provide a helmet. However, a specific farm quad bike helmet has not been developed for Australia and, instead, a helmet used for a motor cycle (a vehicle of a different character) was recommended. The evidence disclosed that a failure to wear such a helmet may not have prevented the death of Ms Macey, unless roll over protection was incorporated with the ATV (which requirement did not form part of the charge in this matter). 2.Farm work exposes employers to high temperatures and a variety of serious risks occasioned from exposure to the sun in those conditions. There was, therefore, a serious risk of injury to employers from such exposure. There is a significant risk arising from the wearing of standard helmets which are not developed for farm use. 3.The affidavit of Mr Cantwell, the Farm Manager, disclosed:

the deceased was very familiar with the locale; it was a very hot day and the tasks she was required to perform did not appear to expose her to risk;
the defendant had insisted on the use of helmets in situations were the ATVs were used aggressively. It now required helmets invariably;
there had been a lack of knowledge about ATV vehicles. Where research was undertaken as to safe measures, there were few resources particular to ATVs;
Annexure D (WorkCover Farm Safety Checklist), to which Mr Cantwell had referred, addressed the manufacturer's instructions and those instructions were to wear a helmet when operating the ATV. It was unclear though whether or not that took into account the practical realities of heat and extreme conditions of wearing a helmet in Australia's outback. 4.The defendant undertook research into the use of ATVs, but there was limited information available. Most of that material was unhelpful. The ATV is a "peculiar hybrid beast" for which there is emerging knowledge. Based on that limited knowledge, the defendant assessed the lower risk to be that of the use of the ATV at low speeds with the driver wearing a wide brimmed hat rather than exposure to the sun which may result from the wearing of a helmet. 5.The defendant was, therefore, faced with an "invidious choice" in making a decision whether to obviate the risk associated with the operation of ATVs by the use of helmets. It chose to resolve the issue by requiring the use of helmets for higher speed, aggressive operation of ATVs and by requiring the use of sun protection and a wide brimmed hat for lower speeds. 6.Whilst recognising the objective seriousness of not providing a helmet in this situation, the Court should take into account in fixing a penalty that the defendant was not an employer who had "just carelessly gone about the task and said whatever you want to do, do". The defendant decided that, at lower speeds the better option was to use a hat rather than a helmet. This assessment may have been the prudent option, unless the unexpected happened, which, as in this case, then "proved them wrong". 7.Whilst acknowledging the possibility that the incident may have been anticipated, it was submitted that the incident had to be considered in the context that the grass had been denuded from this paddock due to drought. It was a paddock Ms Macey had traversed on numerous occasions. The pipe was probably the only hazard in the "whole of the huge paddock" which may have caused an accident. The obstacle was not invisible because there was no growth of grass hiding it. The defendant was entitled assume those hazards were visible and avoidable. The accident was, in fact, unexplained and unexpected. 8.This was a rural employer, "doing its best to do the right thing" by its employees and they did so in a considered manner. 9.Ultimately, the defendant conceded that Ms Macey should have been wearing a properly fitted helmet. Helmets were available at the premises. 10.Ms Macey was a member of the farming community and the defendant "felt the loss deeply". 11.This was a rural enterprise, employing 20 people. The land had been in drought for 10 years or so. While the defendant could not be said to be in an impecunious situation the fine would be a significant impost on the defendant's business. The defendant did not have the cash resources to be able to deal with a fine and would have to liquidate property. 12.Given this is an equipment case, and given the mitigating circumstances, the severity of the penalty should be lower, "down at the bottom end of the scale".

[18]

Evidence 30The prosecutor tendered a sentencing bundle containing the agreed statement of facts, a Prior Convictions Certificate for the defendant, a Factual Inspection Report of Inspector Karen Simpson, an expert report of Dr Thomas Gibson, a supplementary expert report of Dr Gibson, 17 WorkCover photos taken by Inspector Karen Simpson, five NSW Police investigation photos taken by Forbes Police, 11 NSW Police investigation photos taken by Police Force Forensic Services Group, a NSW Police "COPS Diagram" and a statement made by Senior Constable Hicks. 31Dr Thomas Gibson is a chartered professional engineer with expertise in the areas of accident reconstruction, biomechanics and injury causation. He produced two biomechanical engineering reports, one dated 10 November 2010 and a supplementary report dated 23 March 2011. The following paragraphs from those reports were of significance and were traversed throughout the hearing by both parties in their submissions on sentencing: 10 November Report Executive Summary ... [10] The area of the impact to the head of Ms Macey falls within the protective area required by AS/NZ 1698 Protective helmets for vehicle users. A helmet to the AS/NZS 1698 standard has sufficient energy absorbing capacity to significantly reduce the injuries to the wearer in an impact of this type and severity. If Ms Macey had been wearing a correctly fitting and fastened motorcycle helmet she would have suffered significantly less injury as a result of the impact with the ground. ... AS/NZS 1698 Protective Helmets for Vehicle Users Standard [75] According to Farm Safe NSW, "Currently the only helmet standard in Australia that is applicable to quad bike riding is AS 1698-1988 Protective helmets for vehicle users. This standard was developed for road users. Until a specific farm motorcycle/quad bike helmet standard for use in Australia is available, riders should use this motorcycle helmet. Causation of the Injuries sustained by Ms Macey [86] As the ATV rolled clockwise, Ms Macey became caught up in the Rollover. Ms Macey received a severe blunt impact to the right side of the head and chest from the ground during the roll sequence, Figue 13 (centre). The ATV then proceeded to roll on top of Ms Masey. Her lower right leg was forced into the region of the hot engine, Figure 8. The roll motion of the ATV continued and it landed on the left mudguard. ... [89] The area of the head impacted falls within the protective areas of the AS/NZS 1698 Protective helmets for vehicle users Standard, see Figure 12. A helmet to the AS/NZS 1698 standard has sufficient energy absorbing capability to reduce the injuries of the wearer in an impact of this type and severity. If Ms Macey had been wearing a correctly fitting and fastened motorcycle helmet she would have suffered significantly less injury as a result of the impact with the ground. ... [98] (e) If so, whether any such equipment would have reduced the severity of the injuries suffered by Ms Macey ; If Ms Macey had been wearing an AS/NZS 1698 compliant helmet then her head injuries would most likely have been significantly reduced. If the ATV had been fitted with an appropriately designed ROPS then her injuries would most likely have been significantly reduced . [99] (f) Whether the use of such equipment would have reduced the likelihood that the injuries suffered by Ms Macey would be fatal; The use of the helmet and the fitting of a ROPS would have most likely reduced the severity of the injuries sustained by Ms Macey to non fatal. [106] This areas of the impact to the head of Ms Macey falls within the proective area of the AS/NZS 1968 Protective helmets for vehicle users. A helmet to the AS/NZS 1698 standard has sufficient energy absorbing capability to significantly reduce the injuries to the wearer in an impact of this type and severity. If Ms Macey had been wearing a correctly fitting and fastened motorcycle helmet she would have suffered significantly less injury as a result of the impact with the ground. Further, the ATV was not fitted with any form of roll over protection device (ROPS). Both these protective devices would most likely have reduced the severity of the injuries she suffered. (emphasis added) Supplementary Report [23] This new information has not caused me to change the conclusion in my Report Dated 10 November 2010 regarding the causation of the injuries sustained by Phillipa Macey in this crash. The conclusions remain: "This area of the impact to the head of Ms Macey falls within the protective area of the AS/NZS 1698 Protective helmets for vehicle users. A helmet to the AS/NSZ 1698 standard has sufficient energy absorbing capability to significantly reduce the injuries to the wearer in an impact of this type and severity. If Ms Macey had been wearing a correctly fitting and fastened motorcycle helmet she would have suffered significantly less injury as a result of the impact with the ground. Further, the ATV was not fitted with an form of roll over protection device (ROPS). Both these protective devices would most likely have reduced the severity of the injuries she suffered. 32The defendant tendered two affidavits. The first was that of Mr Ray Scott, director of the defendant. It is relevant to note the following parts: The respondent has always supplied helmets to person utilising the farm motor bikes or quad bikes (for work or pleasure) Our employees have been encouraged to wear helmets. We have not forced them to wear helmets unless it has been deemed necessary because of the nature of the work being undertaken on the bikes. For instance if there was to be mustering in open paddocks or if there were to be any form of aggressive riding then those motorbikes or quad bikes were forced to wear helmets. Since this terrible accident we have ensured that all persons riding motorbikes or quad bikes on the property wear helmets no matter what the work is or how safe they may deem it to be. 33The second was that of Mr Mick Cantwell, which included the following annexures: Pre-Employment Checklist; Induction Information Sheet; Motorbike/ATV Operation Checklist and WorkCover 15 Minute Farm Safety Checklist. He stated: It was a very hot day. It would have been close to 40 degrees on the ground. I had assessed the risk and determined that wearing a helmet was not a necessity because: The possibility of heat stroke was of great concern if a full helmet was worn; Of the risks associated with prolonged exposure to the Sun. Helmets do not provide significant protection for the operator of a motorcycle or ATV around the fact and neck, particularly when the operation can mustering stock in paddocks completely exposed to the Sun for more than 8 hours per day; However, whilst mustering or attending to stock, quite often other work is required to be done on an emergency basis (for instance fence repair). It was deemed safer for operators of the motorcycles or ATVs to wear an Akubra style hat, sunglasses, suncream etc to attend to those tasks rather than wearing a heavy helmet; The nature of Pip's task on the day was to travel at approximately 10kms per hour in a straight line with stock that were calm and once left in the paddock to return. I would have anticipated that Pip would not have travelled more than approximately 40 kms per hour on the return journey; The land was well worn and there were no hidden obstacles. A pipe that has been the subject of Workcover's investigation was easily seen just an importantly had been traversed by Pip on a number of occasions; As we were in drought conditions there no grass to speak of in the area that Pip was travelling, certainly nothing to hide the lie of the land; Pip was a conscientious and experienced rider of two and four wheel cycles. We have employees that are not conservative and we take greater interest in their behaviour. Pip had done nothing in her time with the respondent to indicate she was anything other than a cautious motorcycle/quadbike rider. As a result of my assessment of the risk I determined that it was not necessary to force Pip to wear a helmet. When employees are involved in aggressive riding, by that I mean mustering stock, travelling quickly over uncertain country etc, they had been forced to wear helmets. However, given the nature of this task I did not think there was any aggressive riding to be undertaken. I now ensure, on behalf of the respondent, that every employee wears a helmet when they are riding a two wheel or four wheel motorcycle no matter what the task or how easy it seems. This is not always easy to implement as it is hard to convince men and women from the land that they need to wear a helmet when they are travelling a short distance over good country or roads that they are familiar with. Nonetheless it is done because Pip's accident has taught us that accidents occur in them most unexpected circumstances. Since Pip's accident I have introduced a proper induction regime which involves the following: Prior to finalising any new employment any prospective employee is required to complete a pre-employment assessment... Each new employee is provided with an induction and i nformation sheet and required to read same and sign... Before any person uses a motorcycle/quad bike/ ATV they must complete a check list...Depending on how an employee completes that check list a determination is made as to whether or not any further training is required before a person uses a motorcycle/quad bike/ATV. ... When I commenced employment with the respondent I did undertake research to give me assistance to determine what I needed to do for Occupational Health and Safety reasons on Burratoo Station. I could not find anything specific on the use of motorcycles or ATVs. I did however find on the Workcover website a 15 minute farm safety checklist....I refer the Honourable Court to the heading "Tractors and equipment"/ I am now aware that manufacturers or motorcycles/quad bikes insist upon the wearing of helmets whenever the item is in use.

[19]

Relevant Principles 34I discussed the relevant general principles for sentencing in this jurisdiction in some detail in WorkCover Authority (NSW) Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 (at [181]-[194]) (" Cross City Tunnel "). I adopt those principles for this judgment and will refer, as appropriate, to particular aspects of that judgment.

[20]

Consideration 35It is appropriate to commence these considerations by reference to some fundamental principles governing the sentencing process. These were discussed in Cross City Tunnel as follows (at [184]-[191]): 184 The purposes for which a Court may impose a sentence on an offender are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999. In this jurisdiction, the Court has adopted the approach applied by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 to the matters listed in s 3A: Morrison v Powercoal (2003) at [100] and Morrison v Powercoal (2005) at [13]. The principal and particular purposes of occupational health and safety legislation are the protection of workers from breaches of health and safety and compelling attention to occupational health and safety at the workplace: Tippett at [112] (applying McDonald's ) and Albright at [38] (there reflecting the objects of the Act). In R v Markarian [2003] NSWCCA 8 at [19], Hulme J (with whom Heydon JA and Carruthers AJ agreed), in the course of restating some basic principles of sentencing, adopted the following passage from Veen (at 261-2): "the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with her Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent...". 185 The sentencing of an offender involves a consideration of both objective and subjective factors: Morrison v Powercoal (2005) at [13]. The Court will keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 to 699; Lawrenson at 475; Fletcher Construction (1999) at 78 and Morrison v Powercoal (2005) at [13] (applying Lawrenson ). Thus, in sentencing, the factual basis for the Court's decision will include what the offender actually did and the history and other personal circumstances of the offender: R v Olbrich (1999) 199 CLR 270 at [1] (as to the proof of fact, see Olbrich at [25]). As to what the offender did, it must be borne in mind that the offender can only be sentenced "for the offence for which the offender has been convicted" ( Camilleri's Stock Feeds at 699 and also Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at [29] (' Ridge '); Powercoal v Morrison (2005) at [76]; and Profab at [34], but the Court is bound to take into consideration the circumstances surrounding the offence for which the defendant has been convicted "so long as the circumstances are not inconsistent with the plea or verdict" ( Camilleri's Stock Feeds at 699 applying R v De Simoni (1981) 147 CLR 383 at 396). It should be noted that a plea of guilty only carries with it an admission of the essential legal ingredients of the offence admitted by the plea: R v O'Neill (1974) 2 NSWLR 582 at 588. Any facts (or disputes of fact) beyond that (and particularly those advanced by the Crown that are said to aggravate the offence) must either be agreed or proved in accordance with relevant principles: see O'Neill at 588 - 589 and Olbrich at [25 - 28]. 186 However, the primary factor to consider in sentencing under occupational health and safety legislation is the objective seriousness of an offence: Lawrenson at 475, Fletcher Construction (1999) at 78, Morrison v Powercoal (2005) at [13], Albright at [28], Capral at [53], Profab at [30], Manpac at [70] to [71], Menzies at [60], McDonald's at 428 and 430, and Walco at [22] to [23]. Thus, it is always important, in seeking to determine the sentence appropriate for a breach of occupational health and safety legislation, to consider the gravity of the offence viewed objectively, as "without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place": Dodd (1991) 57 A Crim R 349 at 354, as applied in Lawrenson at 476 and Fletcher Construction (1999) at 74 (see also R v Gordon (1994) 71 A Crim R 459 at 468, R v Allpass (1993) 72 A Crim R 561 at 563 and McDonald's at 432). (Indeed, the objective seriousness of the offence should be considered "first of all": Gordon at 468.) 187 Adopting the approach in Veen (at 472), each offence has its own objective gravity meriting at most a sentence proportionate to that gravity with the maximum sentence fixed by the legislation defining the limits of sentence for the most grave category (see Dodd at 354). This approach will ensure that allowance for subjective factors does not produce a sentence which fails to adequately take into account the objective gravity of the offence: Dodd at 354; Lawrenson at 476 and Fletcher at 79 and that there is a reasonable proportionality between a sentence and the circumstances of the offence ( Dodd at 354). Thus, this Court has consistently stated that subjective matters such as a plea of guilty, previous good individual citizenship, cooperation with the investigation and subsequent measures to improve safety, "rank in importance well behind the two primary aspects of the matter, namely, the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce" (per Walco at [23]; see also Morrison v Powercoal (2005) at [13], Fletcher Construction (1999) at 78, Lawrenson at 475, Waugh at 97 and McDonald's at 429). 188 In Morrison v Powercoal (2005), the Full Bench approved (at [14]) the dicta of Hungerford J in Fisher v Samaras (at [388]) where his Honour held that the Court had a duty to "ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty in so far as a defendant is concerned not to impose such a penalty as would be oppressively high " (emphasis added) (a confirmation of that approach - without specific referral to Fisher v Samaras was given by the Full Bench in Warman at [339]). 189 Wright J, in Walco (at [23]), considered that this dicta should not be considered as qualifying the approach to balancing subjective and objective factors as expressed in Waugh . His Honour was referring to the subsidiary role of subjective factors discussed above. However, in my view, no contrary view was expressed in Fisher v Samaras . Hungerford J's observations were, in fact, derived from an earlier decision of Cullen J ( Workcover Authority of New South Wales (Inspector Glen David Gordon) v Walco Elevators Pty Ltd (unreported, NSW Industrial Court, 13 March 1996) in which Cullen J (at [116]) had expressed the view that the Court has a duty to ensure breaches of occupational health and safety legislation are punished with penalties of such magnitude "that companies will address occupational health and safety issues before such accidents occur". In substance, Hungerford J was, as he noted, correctly in my view, applying the oft quoted passage from the judgment of the Court of Criminal Appeal (delivered by Street CJ) in R v Rushby (1977) 1 NSWLR 594 at 598, as follows: If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and the probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 190 The objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Morrison v Powercoal (2003) at [13]; Lawrenson at 474; Independent Cargo at 4 and Hannah v Wonar at 9. As earlier noted, this will involve an assessment of what the defendant did (the objective circumstances of the offence) which, in the case of occupational health and safety legislation, will involve an assessment of the detriment to safety occasioned by the defendant ( McDonald's at [438]) and the nature and quality of the defendant's acts, as assessed in that respect. 191 As was observed by the Full Bench in Morrison v Powercoal (2005) at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23). The decision of the Full Bench in Fletcher Construction (1999) (at 79) (and Morrison v Powercoal (2005)) demonstrates that, nonetheless, there are a number of factors which, in the jurisprudence of the Court, may tend to establish the existence of an objectively serious offence. A few may be nominated for present purposes, as follows: (i) Foreseeability In McDonald's at 450 ( following Kembla Coal and Coke at [27]), the Court held that the degree of foreseeability of a risk to safety was a significant factor to be taken into account when assessing the level of culpability of the defendant (see also Benbow v Planada at [9]). Hence, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a relevant factor in the assessment of the gravity of the offence. By the Full Bench judgment in Capral (at [82]), it was held that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. The gravity of the offence will increase where the risk to safety is known and left unabated with remedial action being available. In reliance on Hannah v Wonar (at [9]), Lawrenson (at [476]) and Coleman at [88], the Full Bench in Powercoal v Morrison at [90] acknowledged the proposition that it will be 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 also Menzies at [87]. In Hannah at [8]), the Full Bench referred to a "known and perceived danger, unchecked, and left in place". The Full Bench in Morrison v Powercoal (2005) referred to a risk being "glaringly obvious" (see also Wild Geese at [27]). Similarly, an offence has been found to have a high level of seriousness where the risk to safety was actually foreseen and not eliminated or minimised by available remedial measures ( Coleman at [89] to [91] and McDonald's at 452, Workcover Authority of NSW (Insp Lyons v Warman International Ltd (2001) 105 IR 236 and Benbow v Planada at [10]). It should be emphasised, however, as did the Full Bench in Capral (at [82]), the absence of foreseeability does not necessarily render the offence as being nominal or 'not serious'. The defendant is required to be proactive in seeking out and managing risks to safety ( Rexma at [52], Corinthian Industries at [10], Coleman at [86] and Workcover Authority of New South Wales v Fletcher Construction Australia Ltd (2002) 123 IR 121 at [43] and [44]). Thus, the defendant will not benefit from a lack of knowledge or foresight deriving from a failure to put in place a proper system for risk assessment, adequate work methods for a location or proper training (see Patton v Fletcher 123 IR 121 at [41] and [42], Benbow v Planada at [21] and Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [15] and [16]). (ii) Death or Serious Injury in Relation to an Offence A related consideration is the relationship between the seriousness of injuries suffered or which may have been suffered and the gravity of the offence. The principle was stated in Capral at [94], thus: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequence 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.... The judgment refers to a long line of authority consistent with that approach, including Tyler at 5, Hannah v Wonar at 9 Wong v Melinda Group Pty Ltd (1996) 82 IR 118 at 131, Lawrenson at 476, Walco at 22 and McDonald's at 428. To these may be added Fletcher Construction (1999) at 79. This passage has been consistently applied: Maddaford at [17]; Menzies at [86]; Narayan at [40] and Cahill at [35]. The authority was applied, in terms, in Morrison v Powercoal (2003) at [32] and Morrison v Powercoal (2005) at [93]. These principles are consistent with s 21A(2)(g), and in the case of a death arising from an industrial accident, s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (see Morrison v Powercoal (2005) at [94]). (iii) Simple Remedial Measures Available A further factor in assessing the gravity of an offence is whether there was available at the time of an incident simple and straightforward remedial measures to avoid or minimise the relevant risk to safety. When taken in combination with the foreseeability of the risk to safety then, such a factor may significantly increase the gravity of the offence. Thus, in Morrison v Powercoal (2003), the Full Bench observed that in assessing the gravity of an offence, the focus must be on the risk, and viewing it objectively, the seriousness of the act or omission that gives rise to the risk (see at [32]). The Full Bench observed (at [33]): ...it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straight forward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender... (the Full Bench thereafter continued this discussion in relation to mitigating factors: see Morrison v Powercoal (2005) at [93]; also see Menzies at [87]. In Gleeson , the Full Bench referred to a particular class of remedial measure, namely, "simple remedial measures well known in the industry in which the respondent was engaged" (at [29]). 36These principles have been followed in subsequent Full Bench judgments of the Court: WorkCover Authority (NSW) (Inspector Ching) v Bros Bins System Pty Ltd [2009] NSWIRComm 155; (2009) 189 IR 343 at [97] and [11]; Inspector James v Paul [2011] NSWIRComm 82 at [56-[57] and Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153; (2009) 188 IR 79 at [55] (see also the judgment of Boland J, President in Morrison v Centennial Coal Company Ltd [2010] NSWIRComm 4 at [25] and [26]). 37To that discussion of principles, I would wish to add one further, broad reference. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 (at 21), the Court found: A plea of guilty merely establishes the essential ingredients of the for sentencing purposes. However the Court needs to know more than those essential ingredients for sentencing purposes so as to address issues of aggravation and mitigation or, more appropriately, to establish the objective seriousness of the offence. It is necessary, in order to properly assess the objective seriousness of an offence (particularly where there is a wide scope for penalty in the imposition of a fine), to identify the whole context of the offence actually committed by the defendant: see R v Olbrich (1998) 45 NSWLR 638 at 542 and 544. 38It is necessary then to consider the objective seriousness of the offence. That should first involve a consideration of the risk to the safety and health of employees (as charged) in this matter. In that respect, I return briefly to the Cross City Tunnel, where it was observed (at [195]): 195 The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100]. 39The judgment of the plurality of the High Court in Kirk v Industrial Relations Commission [2010] HCA 1 ; ( 2010) 239 CLR 531 discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion was equal applicably to s 8 of the Act) as follows (at [11]): [11] What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace. 40The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]). 41When constrained by the particulars of the charge and the submissions advanced by the prosecutor, the relevant risk here was the risk to the health and safety of Ms Macey arising from the operation of the ATV without a helmet. 42This matter concerns a failure in the defendant's 'system of work'. In that respect, the defendant failed to obviate the risk by the taking of steps necessary to ensure a helmet was worn whilst Ms Macey operated the ATV. 43The measures that would have obviated that risk, as described in the particulars, were as follows: (i) requiring the wearing of an AS/NZ 1698:2006 helmet; (ii) preparing a SWMS which required employees to wear helmet; (iii) training staff to give effect to these measures by adopting adequate information instruction and training. 44There are a number of factors which increase the objective seriousness of the offence, so described.These are as follows (see Cross City Tunnel at ([191] (i), (ii) and (iii)):

[21]

Specific Deterrence 48In accordance with the principles stated in Cross City Tunnel (at [193]) specific deterrence should also factor in the penalty imposed on the defendant. The defendant continues to operate a business at the Burratoo Station. Employees continue to utilise ATVs in their daily work. I accept, however, that steps have been taken to improve safety. There are now mandatory helmet requirements and induction procedures directed to ATVs and training in ATVs. With this consideration in mind, the fine will only incorporate a modest component aimed at addressing specific deterrence.

[22]

Subjective Features 49I now turn to the subjective features of the matter. 50The steps taken by the defendant following the incident are a relevant factor in mitigation : WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; (2008) 172 IR 210 at [24] and JT & LC Tippett Pty Ltd v Workcover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 at [107]. 51The defendant has worked diligently to improve its overall safety performance and have introduced a number of safety initiatives since the incident. Helmets are mandatory when using ATVs. Induction information sheets are used to assess whether training for employees on the safe use of ATVs is required. I accept that that the defendant has demonstrated a strong commitment to workplace safety and that this is also a factor to be taken into account in their favour: Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 (at [109]). 52The assistance provided to the family of an injured worker is another relevant factor in mitigation: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) NSWIRComm 99 IR 159 at [17] and Powercoal (No 3) at [112] and [114]. The defendant has provided some assistance and support to Ms Macey's family, for which they should be entitled to some benefit. 53I also accept that the defendant has demonstrated contrition and remorse over the incident: Alcatel Australia Limited v Workcover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) - (108); Powercoal (No 3) at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [39]; Rexma at [53] and McDonalds at 454. This is evident from the conduct of the defendant following the incident and the express statement of contrition and remorse in affidavits and the memorial on the station. The loss of Ms Macey was deeply felt by the defendant and the farming community. 54A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. This is a factor which can be taken into account for corporations: Alcatel at 107 - 108 and McDonalds at 453. I accept that the defendant co-operated with WorkCover and its investigation and should, accordingly, be entitled to a discount. 55The next consideration is the discount which should be afforded the defendant for the entry of a plea of guilty. 56The prosecutor submitted that, despite the plea of guilty having been entered at the third directions hearing on 12 April 2011, there was no reason why the Court should not treat the plea as attracting the full benefit for the purposes of sentencing. 57I consider that the defendant should have a discount on sentence for their plea of guilty at the top of the range referred to in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v Workcover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act.) 58I note that the prosecutor referred to some authorities adopting a different approach to such a question (without referring to these authorities). Given the concession by the prosecutor, it is unnecessary to further consider that question, although there is no issue of principle which would indicate a contrary approach to that which I have adopted in this matter. 59The defendant shall receive a discount of 25 per cent for their plea of guilty. 60The defendant has no previous convictions and I accept it as being of good industrial character: Corinthian Industries at [17]; Powercoal (No 3) at 107; and Tippett at [107]. 61I also take into account that this was a rural enterprise, employing 20 people and counsel's submission that the defendant did not have the cash resources to be able to deal with a substantial fine and would have to liquidate property to satisfy such a penalty. A substantial fine would be a significant impost on their business. However, the primary consideration, in this respect, is the defendant's submission that the defendant would be able to meet its obligations as to any fine imposed and there was no issue of impecuniosity.

[23]

CONCLUSION 62The defendant's submission was that in terms of severity, the fine imposed should be down at the bottom of the low range. I do not accept this submission. 63As discussed in some detail earlier, the Court must ensure that mitigating and subjective factors do not produce a sentence which fails to sufficiently take into account the objective gravity of the offence. 64Here, there was a tragic death of a young woman and the exposure of others to the risk of serious injury. The objective seriousness of the offence is well manifested by the charge and the particulars thereof (as modified by the prosecutor's submission) and the various factors discussed in this judgment which dictate a conclusion that the offence remains a quite serious one. Nonetheless, I have reduced the penalty which may have otherwise been imposed upon the defendant because of the significant mitigating and subjective factors demonstrated in its case (the penalty would have been much greater but for those factors). I shall impose a penalty of $80,000 with a moiety to the prosecution. The prosecution should have its costs of the proceedings.

[24]

Orders 65For all the reasons given, I make the following orders:

The defendant is convicted of the offence.
The defendant is fined the sum of $80,000 with moiety to the prosecutor.
The defendant shall pay the prosecutor's costs as agreed or as assessed. Failing agreement, costs may be referred to the Registrar for assessment.

[25]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2011

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