Inspector Wolf v Port Kembla Copper Pty Limited

Industrial Relations Commission (NSW)|2005-11-18|Before: Backman J, Ms P

CITATION: Inspector Wolf v Port Kembla Copper Pty Limited [2006] NSWIRComm 341

Prosecutor: Inspector Ross Wolf PARTIES: Defendant: Port Kembla Copper Pty Limited

CATCHWORDS: Occupational health and safety - pleas of guilty to two offences under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - incident at defendant's copper smelting plant when molten copper flowed from a furnace onto water below and caused a series of phreatic (steam) explosions - no serious injuries - defendant had comprehensive and impressive systems of safety implemented at the plant although the systems were deficient in some respects - risk to safety (from steam explosion) was known and obvious - general deterrence considered - specific deterrence considered - availability of simple remedial measures considered - potential or likely consequences of defendant's failures considered - prior convictions - significance of subsequent offence considered - early pleas of guilty - utilitarian principle applied - good corporate citizenship considered - cooperation - contrition - totality - penalty - orders - costs.

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

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2005) 105 IR 181 Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304 Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61 CASES CITED: Inspector Stephen Charles v Port Kembla Copper Pty Limited [2005] NSWIRComm 54 Maddaford v CSR Limited and Mulgoa Quarries [2004] NSWIRComm 337 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 South Sydney Junior Rugby League Club Limited v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44

Prosecutor: Mr B Docking of counsel Solicitors: Dibbs Barker Gosling LEGAL REPRESENTATIVES: Defendant: Ms P McDonald of counsel Solicitors: Blake Dawson Waldron

INSPECTOR ROSS WOLF v PORT KEMBLA COPPER PTY LIMITED (ACN 076 258 976)

Prosecutions under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000

1 Port Kembla Copper Pty Limited (the defendant) has pleaded guilty to two applications for order which allege that offences were committed under s 8(1) and s 8(2) respectively of the Occupational Health and Safety Act 2000 (the 2000 Act). The offences which arise from the same factual background allege that on 8 June 2002 at Port Kembla, the defendant, an employer, failed to ensure safe systems of work for certain nominated employees at work, and other persons not its employees, at its place of work. 2 The defendant operated a copper refining and smelting business at its Port Kembla premises. Two anode furnaces, known as the east anode furnace and the west anode furnace, were used in the smelting process to remove impurities from molten copper and convert copper ore to copper. On the day of the offences, a valve in the east anode furnace malfunctioned and the furnace ceased rotating. A series of subsequent actions, intended to rectify the problem, at that stage unidentified, resulted in the furnace rotating in the wrong direction and spilling a large quantity of molten copper. The molten copper came into contact with water and caused one large and two small explosions. The large explosion caused damage to the smelter building. Fire also damaged plant inside the smelter. All personnel were successfully evacuated and no one was seriously injured. 3 Both offences contain identical particulars which identify the risk to safety and four breaches of the failure to ensure safe systems of work. The risk is particularised in the applications as:

There was a potential risk to the safety and health of (nominated workers) from explosion through molten metal coming into contact with water and in particular thereby causing a reaction called a phreatic explosion.

(According to the evidence, a phreatic explosion, also called a "steam explosion", is a term used in the smelter and refining industry to describe a process whereby water is trapped under molten copper. The water expands rapidly as it is converted into steam. The steam lifts and disperses the copper which can result in an explosion.) 4 The defendant's failures are particularised in both applications as follows:

Failure of a valve in the instrument control system resulting in the pneumatic drive system being armed incorrectly so that activation of the air roll-out button caused the east furnace to rotate in the wrong direction;

Failed to have in place an adequate fail-safe emergency brake to prevent the east furnace from rotating;

Failed to provide adequate information, knowledge and training to the defendant's technicians or electricians to diagnose and correct faults;

Failed to provide an adequate bund to prevent molten metal coming into contact with water under the Anode Casting Wheel." 5 An Agreed Statement of Facts, tendered by Mr Docking, of counsel, appearing for the prosecutor, and an affidavit of Drew Glen Winning relied upon by the defendant, represented by Ms McDonald, of counsel, revealed the operation of the furnaces and the systems in place at the smelter to identify and rectify problems at the time of the offences. It is necessary to repeat, in some detail, the operation of the furnaces, and the systems in place in order to understand the sequence of events leading up to the accident on 8 June. 6 The east anode furnace could rotate through 360 degrees in either direction. A clockwise rotation rotated the furnace towards the casting side. This facilitated the pouring of copper through the casting opening, which is approximately 125mm in diameter, into an adjacent launder system, from where it was directed into copper moulds on an anode casting wheel and cooled with water. An anticlockwise rotation rotated the furnace towards the refining or processing side. This enabled the deposit or charge of scrap copper into the furnace by means of a charging boat into another opening (the scrap opening) in the furnace which is approximately two metres in diameter. The scrap opening was also used to remove impurities known as "slag" from the copper in the furnace. 7 The east anode furnace was operated by three drives or motors. The main drive, an electric motor, rotated the furnace during the refining or processing operation. A second electric motor, the casting drive, rotated the furnace during the casting operation. An air motor, or pneumatic motor, acted as a back up system to the main drive and was generally activated in the event of an electrical failure. If the furnace was rotated past either -2.5 degrees (the casting side) or +2.5 degrees (the refining side), the air motor was automatically activated. Both the main drive and the air drive had emergency air roll-out functions. In the event of an emergency, these functions were designed to rotate or roll-out the furnace to a position of 0 degrees (the "all ports free" position), and hence prevent the escape of molten copper from the furnace. A component of the air drive was a double solenoid pilot valve in which the air drive rotated the furnace. This was the valve which malfunctioned on 8 June 2002. 8 A furnace control room (the "dog box") housed one set of controls for the east anode furnace. The furnace could also be controlled outside the dog box by means of joy sticks. One joy stick operated the main drive to rotate the furnace into the refining position. The second joy stick operated the air motor. A separate set of joy sticks operated the furnace during the casting process and were located in the casting control room. The furnace was also equipped with a braking mechanism which was automatically activated whenever the furnace stopped rotating. 9 A computerised system known as the distributive control system (DCS) controlled both anode furnaces. It allowed technicians to view operations taking place in several areas on screen. The DCS was programmed to identify errors or inconsistencies in the operation of the furnaces. When an error was detected, the programme was designed to disengage the main drive operating the east anode furnace and therefore prevent further rotation until the error was investigated and rectified. The air drive was designed to operate as a "stand alone" system independent of the DCS. It overrode the DCS if the DCS halted the rotation of the furnace at a point which might allow copper to escape or if the DCS was no longer able to control the rotation (for example, in the event of a power failure). 10 The emergency air roll-out function, when activated, was operated by the air drive. This function could either be activated automatically if the power to the main drive was interrupted or shut down; or, activated by a technician using one of the anode furnace control panels, by pressing a button for either the main drive or the air drive. The emergency air roll-out function was designed so that, once activated, the air motor could not be disabled while it was returning the furnace to the "all ports free" position. It could only be manually disabled by isolating its air supply. 11 Water was an important element used during the copper casting process. It was sprayed on top of the molten copper which was poured into 24 moulds on the anode casting wheel located next to the furnaces in order to cool the copper and accelerate its solidification. Excess water from this activity fell into a sump by means of a series of drains located below the casting wheel. The water could, at times, reach a depth of 600mm in the sump. One of the risks, which was known to the defendant prior to the offences on 8 June 2002, of working with water in the smelting operation was, as earlier mentioned, the risk of steam or phreatic explosion. The risk only arose when water was trapped underneath the molten copper. There was no risk of a phreatic explosion when water was applied on top of the molten copper. According to Mr Winning, who gave evidence during the sentence proceedings, it did not require a "great" quantity of water to give rise to the risk of an explosion. This was because the conversion of water to steam resulted in a "significant increase" in volume for a small volume of water. 12 About six months prior to the offences (in December 2001), approximately 20 tonnes of molten copper spilled out of the east anode furnace onto the ground. One of the recommendations arising from an investigation by the defendant into that incident resulted in increasing the depth or holding capacity of the bund located underneath the anode furnaces. At that time, the defendant did not identify as a possible risk the overflow of molten copper from the ladles and launder facilities into the area outside the bund thereby causing the molten copper to come into contact with the water in the sump. 13 On 8 June 2002, Jason Stirling Koster and Marcos Sergio Miranda, both smelter technicians employed by the defendant, were operating the east anode furnace. Some time after 4pm, the furnace was rotated towards the casting side to an angle of approximately -13 degrees. Later, Mr Koster attempted to rotate the furnace from -13 degrees to 0 degrees in order to effect some repairs. Either he or Mr Miranda used the main drive joystick but the furnace did not respond. Since the furnace had rotated to a position in excess of -2.5 degrees on the casting side, in the normal course of events, the air drive would be automatically activated. In this instance, however, unknown to the workers, the double solenoid valve which, once the air motor was activated, moved a shuttle valve that in turn controlled the direction of rotation, malfunctioned. As a result of the malfunction, the shuttle valve could not move to the appropriate position (towards the casting side). 14 The DCS detected that a fault had occurred by displaying a yellow flashing "Fault" on the screen. In response, the DCS disengaged the electric drives, including the main drive which prevented the furnace from further movement. Neither Mr Koster, nor Mr Miranda, were trained to operate the DCS. Mr Koster notified Evan Rodney Wilson, a shift system support officer (SSSO). The SSSO was trained to verify the currency and accuracy of the DCS code as it applied to the operation of equipment or processes. The SSSO was not trained to diagnose and correct faults identified on the DCS. Mr Wilson made several attempts to rectify the error without success. These attempts were undertaken, according to a report compiled by the defendant of the incident (annexed to Mr Winning's affidavit), between about 4.10pm and about 5.50pm. During training, the SSSO was made aware that if he or she required assistance or was unable to correct a fault identified on the DCS then a process control engineer should be contacted. These engineers were on call 24 hours a day under a roster system. Mr Wilson also gave evidence during the sentence proceedings. In a statement tendered into evidence Mr Wilson said:

In hindsight, I would have sought assistance from the process control engineer, however, this was a matter for my discretion. On a day-to-day operational level, the Process Control Engineer was not always called whenever there was a problem with the furnaces. One reason was that it took too long to get a response. Further, Process Control Engineers did not deal with certain aspects of operations, for example they did not deal with problems relating to PLCs, and in these circumstances, the electrical people working on a shift, such as myself, were left to their own devices to deal with these problems. 15 At about 5.52pm the emergency air roll-out button was pressed. The circumstances as to how this activity came about have never been ascertained. In any event, the activity caused the east anode furnace to rotate. Because of the malfunctioning valve, it rotated towards the casting side and away from the "all ports free" position. Molten copper began to pour from the furnace. Mr Wilson made several unsuccessful attempts to isolate the power to the furnace. Because there was no control mechanism to stop the rotation of the furnace while it was being driven in the airdrive, which was itself designed to be an emergency system, the only way to deactivate the air drive was to turn off the air source which was located below the furnace. Mr Koster accomplished this task by descending the stairs towards the molten copper and isolating it. Approximately 200 tonnes of molten copper had poured out of the furnace. Because of this volume, the launder and troughs used to tip copper into the moulds on the casting wheel could not contain it. The molten copper poured over the side of the troughs into the casting bund, a smaller bund which was adjacent to the furnace. From there it came into contact with the pooled water under the casting wheel. Consideration 16 This brief summary of events leading up to the incident of 8 June 2002 reveals a number of deficiencies in the defendant's procedures to prevent the escape of molten copper from the furnaces, and, in the event that occurred, appropriate methods to contain it before it came into contact with water. This is not to say that the defendant lacked procedures for the prevention and/or containment of such contingencies. The evidence reveals that the defendant had implemented both comprehensive and impressive procedures in this regard. The December 2001 incident for example resulted in the capacity of the bund underneath the furnaces being increased. As Mr Winning's affidavit attests, the defendant, recognising the risks associated with water becoming trapped under molten copper had undertaken a number of measures to manage and control the risk. These included inductions during which workers were instructed in relation to the use of water and the risk of a steam explosion as well as instructions on preventative steps to obviate the risk. Areas where molten copper might be present were kept dry, for example inside the bund which enclosed the area around the furnaces. Controls to operate equipment were located away from areas proximate to water. Automated systems were introduced so that workers were not located near plant or equipment where the risk of a steam explosion might be present. Monitoring systems were installed on the furnaces with water cooled linings to ensure the prompt detection of water levels. Workers were provided with appropriate PPE. In addition, in an emergency situation caused by the risk of explosion, evacuation procedures had been designed to safely evacuate all workers at risk to safety. 17 Many other safety measures which had been implemented by the defendant prior to the offences have been earlier referred to. These include the DCS which, once it had identified error, acted to disengage the main drive operating the furnaces to prevent them moving further. These features were successfully utilised at the time of the offences. The emergency roll-out was also designed to rotate the furnaces to a safe position, the "all ports free" position. In the present circumstances, however, this activity was impeded by the malfunctioning valve. The technicians who worked with the anode furnaces were also provided with training and instruction on their safe operation with a view to minimising the risk of copper spill. The furnaces were also regularly inspected and maintained through a computerised maintenance system known as the JD Edwards One World maintenance system (JDE). This system also recorded and tracked the maintenance history of the smelter and its equipment. The agreed statement of facts discloses, for example, that there were no recorded problems with the valve prior to 8 June 2002. 18 The defendant also had a system in place once an error or inconsistency was identified in relation to the operation of the furnaces. This system was utilised on 8 June 2002. The smelter technicians first endeavoured to fix the problem with the east anode furnace. The DCS meanwhile detected a fault with the furnace, although not its cause. The technicians, who were not trained to operate the DCS, then notified Mr Wilson, the SSSO, who was trained, at least to verify the currency and accuracy of the DCS code, although not trained to diagnose and correct faults identified by the DCS. He attempted unsuccessfully to rectify the problem. He did not however take the next step in the system which was to contact a process control engineer. This step, he said in his evidence was left to his discretion. In his statement he said one reason why he chose not to contact a process control engineer was because it took too long to get a response. Neil Cooper, a project manager employed by the defendant, gave evidence during the sentence proceedings. He confirmed that the engineers were available "on call" seven days a week under a roster system formulated on Friday afternoons. He had contacted process control engineers on many occasions when the need arose. According to him they usually responded "...within an hour". Mr Wilson was counselled by the defendant after the incident as to his failure to rectify the DCS code and his failure to seek assistance from a process control engineer. The prosecutor contends that the element of the SSSO's discretion as part of the overall system in place for the identification and rectification of faults in the operation of the furnaces rendered that system unsafe. I do not entirely agree. In my opinion it was one component of an otherwise comprehensive and effective system that could be more accurately described as a flaw in the system. 19 The impressive and largely effective systems of safety which the defendant had designed and implemented in relation to the operation of the furnaces, including systems specifically designed to minimise the risk of a steam explosion mitigate the otherwise seriousness of the offences. The existence and implementation of these systems shows that the defendant had a high regard for the safety of both its employees and non-employees working in the smelting area: see Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 at [83]. 20 Nevertheless there were deficiencies in the systems as I earlier observed. There was a known and obvious risk of a steam or phreatic explosion, in relation to which the defendant, following the December 2001 incident, took a number of measures including increasing the capacity of the bund. The defendant failed however to recognise that molten copper could overflow from the launder and troughs into the area outside the bund and come into contact with water, which is precisely what happened. 21 The prosecutor contends that the risk to the safety of workers from a steam explosion was reasonably foreseeable. The defendant does not join issue with the contention. Undoubtedly, given the December 2001 incident the risk of a steam explosion was known to the defendant. This risk continued to exist so long as there was a quantity of water under the casting wheel. The defendant does not concede that the incident, or accident, on 8 June 2002 was reasonably foreseeable. It is unnecessary for me to decide this latter point since it focuses impermissibly on the accident, and not on the risk: see South Sydney Junior Rugby League Club Limited v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [41] - [42]. 22 The existence of a known and obvious risk renders the offences serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81] - [82]. 23 General deterrence is also an important factor in the sentencing process particularly here where the defendant operated in a dangerous industry. Specific deterrence also continues to play a role although a limited one. The present circumstances were set out by me in an earlier judgment involving the same defendant in Inspector Stephen Charles v Port Kembla Copper Pty Limited [2005] NSWIRComm 54:

[84] In relation to specific deterrence, the defendant put forward an argument that because its operations had ceased in 2003, the weight to be attached to specific deterrence should be low. Mr Ian Peter Wilson's affidavit (at [9]) reveals that following a series of retrenchments, the last of which took place in November 2003, the defendant's operations were scaled down to a team of approximately eleven permanent personnel who have remained on site to oversee the care and maintenance plan for the facility.

[85] In these circumstances, there is little utility in imposing a penalty for the purposes of specific deterrence. A remnant of the defendant's operations remains, however, (although confined to care and maintenance). Some small component of the overall penalty should therefore take account of specific deterrence: see WorkCover Authority of New South Wales v Shrader at [71]. 24 Based on the defendant's current operations a small component of the overall penalty should take into account specific deterrence. 25 The prosecutor contends that a number of simple measures were available to obviate the risk, and that the post-accident remedial measures implemented by the defendant confirm this. These measures, which were considerable, have been set out in the agreed statement of facts and are extracted below:

(a) A steel and concrete bund wall was erected between the casting ladle and the Anode Casting Wheel in order to contain any spill of molten copper and ensure that it does not come into contact with water under the Anode Wheel;

(b) The Defendant revised its emergency evacuation procedures at the site. Refresher training was given to persons working at the site. Persons working at the site were issued a red card entitled "PKC Emergency Response Plan". This card documents the procedures for an emergency evacuation a the site;

(c) A "fail-safe" brake was installed to stop rotation of both Anode Furnaces, such rotation being caused by either gravity, the air motor or the main or the casting drives;

(d) The "Locking Out Anode Furnace Drives PKC-2645 Sm-AE-8-2" was revised and instruction on the revised procedure was provided to workers in late June/early July 2002;

(e) A new maintenance strategy was developed for the EA Furnace Air System;

(f) Modifications were made to the DCS control code for manoeuvring the EA Furnace, the main drive motor and the air motor. The operating code was simplified and modifications were made to the display graphics on the DCS screen;

(g) A brake above the CP42 Control Panel was installed which could be used in an emergency to halt the rotation of the EA Furnace. The updating of the CP 42 Control Panel included the installation of a new red mushroom-type stop switch in the middle of the control panel and new labelling on 2 emergency stop buttons which are located above that control panel;

(h) A three way valve next to CP 42 Control Panel was installed to isolate air to the air motor (ie technicians would not have to go beneath the EA Furnace in order to isolate the air to the air motor);

(i) The emergency air roll out in the DCS was de- latched so that if the emergency stop button was pulled back up, the emergency roll out would stop;

(j) The logic or coding in the DCS for the arming switches was changed. If the EA Furnace rotated beyond the -/+5 degree rotation angle, the DCS would stop the furnace completely while it determined whether the air motor arming on the furnace was operational. This eliminated the risk of the EA Furnace being rotated by the air motor is there was arming fault;

(k) The DCS logic was changed so that when the EA Furnace arrived at 0, it reverted back to manual function;

(l) Additional training was provided to technicians on the operation of the Anode Furnaces;

(m) A briefing was conducted about the Explosion with all of Secondary Smelter Technicians and a detailed briefing was held for Anode Furnace technicians. The briefings went through the findings of GRBCIP and what steps had been taken by PKC to prevent a recurrence of the events which led to the Explosion;

(n) A siren was installed onto the DCS which could be activated by technicians to alert personnel in the plant to the movement of the Anode Furnaces;

(o) Technicians were instructed about the need to verify the code on the EWS before attempting fault finding; and

(p) The modifications described above made to the EA Furnace were also made to the West Anode Furnace. 26 The defendant contests the prosecutor's submission that simple remedial steps were available prior to the offences to obviate the risk. The anode furnaces according to the defendant are complex machines and in order to deal with the complexity a number of layers of safety had been developed over the years. The decision to modify the braking system of the furnace following the accident, for example, required careful consideration and assessment of the interaction between the brake and the air motor so that new risks would not be created. This submission, in relation to a fail-safe braking system, was expanded upon by the defendant in oral submissions. As discussed earlier, the emergency air roll-out button was essential in order for the furnaces to return to the "all ports free" position. The application of a fail-safe braking system apparently prevents this activity from occurring because it operates to freeze the furnace in any position even when it has rotated to a point where molten copper is flowing from the furnace. It was therefore only after very careful consideration and assessment by the defendant that the decision to introduce the fail-safe braking system was made. In this context the implementation of this particular remedial measure was by no means an easy decision. Nor could it be described as a simple, readily available strategy. 27 While I agree with the submission, there are a number of other measures, outlined above which suggest that they were other readily available measures capable of implementation prior to the offences. The erection of a bund between the casting ladle and the casting wheel is one such measure as is the modifications to the DCS. The changes made to the coding of the DCS for the arming of switches now ensures that if the furnace rotates more than plus or minus 5 degrees, the DCS will halt all further movement until it determines whether the air motor arming at the furnace is operational. This effectively eliminates the risk of the furnace being rotated by the air motor if there is an arming fault. All of these measures were available and capable of implementation prior to the offences. This factor heightens the objective seriousness of the offences. 28 The potential or likely consequences of the defendant's failure I find could have been grave. Mr Koster descended the stairs towards the molten copper in order to deactivate the air drive by turning off the air source which was located below the furnace. By this course of conduct Mr Koster was exposed to the risk of a steam explosion. Had Mr Koster been in the area below the furnace at the time of the explosions he may have been seriously injured. The seriousness of the likely consequences which result from breaches of the 2000 Act is also relevant to the Court's assessment of the seriousness of the offences: see WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44; Maddaford v CSR Limited and Mulgoa Quarries [2004] NSWIRComm 337 at [23]. 29 The defendant has prior convictions. The maximum penalty therefore for each of the two offences alleged against the defendant is $825,000. In my judgment in Inspector Stephen Charles v Port Kembla Copper I dealt in some detail with the defendant's prior convictions: at [96] to [106]. I adopt in my judgment the analysis and conclusions I made in that earlier judgment. The present offences were committed on 8 June 2002. The earlier offences occurred within a short time frame (August and October 2001 and March 2002). All those offences and the present offences reveal that the defendant had safety procedures in place that were deficient. Here, the defendant had procedures in place to prevent the escape of molten copper and to contain it before it came into contact with water, but, as earlier discussed, it failed to incorporate measures to meet the contingency that in the event of a molten copper spill the molten copper might come into contact with water by overflowing from the launder and troughs into the area outside the bund. 30 Although the factual backgrounds of each of the prior offences show little if any commonality, they all involved breaches of the occupational health and safety laws. The present offences are in the same category and can therefore not be seen as an uncharacteristic aberration: Veen v R (No 2) (1988) 164 CLR 465 at 477 - 478; Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304 at [55]. 31 I note for completeness that the offence for which the defendant was convicted and fined in Inspector Charles v Port Kembla Copper was committed on 31 August 2002, that is, after the present offences. It therefore does not fall for consideration as a previous offence under s 12 of the 2000 Act. It remains however a relevant consideration, as a subsequent offence, for the limited purpose of this Court withholding leniency to which the defendant may otherwise be entitled in the exercise of the Court's discretion: see Inspector Marilyn Lewis v Northern Sydney and Central Coast Area Health Service [2006] NSWIRComm 61 at [54] - [58], [65]. 32 The defendant has entered pleas of guilty to both offences under ss 8(1) and 8(2). I do not understand the prosecutor to dispute that the pleas were entered at an early stage. The defendant is therefore entitled to a discount of the sentences in accordance with the principles in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104. 33 I consider the appropriate discount for the utilitarian value of the pleas is 25 per cent. 34 I also take into account in the defendant's favour the safety procedures and other measures which it has developed and implemented following the commission of the offences. These matters have been earlier referred to in this judgment and I do not repeat them here. 35 The defendant has during its period of operation involved itself in community activities and generally contributed positively to the local community through sponsorship programmes, both sporting and academic, the construction of public facilities, community liaison work, and, the publication of a Port Kembla newsletter distributed to members of the Port Kembla community. These matters which show good corporate citizenship I take into account for the purpose of extending leniency to the defendant. 36 The defendant also cooperated with WorkCover during that Authority's investigation into the incident of 8 June 2002. By reason of its pleas of guilty and as a separate consideration from utilitarian principles, the defendant has also exhibited contrition. All these matters will be taken into account in the defendant's favour in the assessment of penalties. 37 The principle of totality also has application here. The offences under ss 8(1) and 8(2) have particularised identical breaches of safety, and, the same conduct forms the basis of both offences. The correct approach to the application of the principle where offences respectively allege breaches of safety at work by reason of a failure to ensure the safety of employees and a failure to ensure the safety of non-employees has been considered in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2005) 105 IR 181 at [21] - [29]. 38 Adopting the analysis in that judgment to the present circumstances, I consider that a fine in the sum of $170,000 should be imposed for the offence under s 8(1) and that a fine of $170,000 should be imposed for the offence under s 8(2). Since both offences share common elements, rely on the same factual background and relate to the same incident the subject of the offences, I consider that in order to properly reflect the criminality of the defendant in respect of both offences that the total fine for both offences should be $170,000. 39 In determining penalties against the defendant I have taken into account the objective seriousness of the offences, the subjective or personal factors detailed above, and the prior convictions of the defendant. These factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. I have also taken into account the principle of totality. Orders

40 In Matter No IRC 2904 of 2004 I make the following orders:

(1) The defendant, Port Kembla Copper Pty Limited is convicted of the offence.

(2) The defendant, Port Kembla Copper Pty Limited is fined $85,000 with a moiety to the prosecutor.

(3) The defendant, Port Kembla Copper Pty Limited is to pay the costs of the prosecutor as agreed, or in the absence of agreement as assessed. 41 In Matter No IRC 2905 of 2004 I make the following orders:

(1) The defendant, Port Kembla Copper Pty Limited is convicted of the offence.

(2) The defendant, Port Kembla Copper Pty Limited is fined $85,000 with a moiety to the prosecutor.

(3) The defendant, Port Kembla Copper Pty Limited is to pay the costs of the prosecutor as agreed, or in the absence of agreement as assessed. ____________________

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.

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties

Cases Cited (11)

Cited By (3)