Larkin v Rice Growers Co-op. Ltd

PROSECUTOR Ms L M McManus of counsel Solicitor: Mr G Henderson Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr M P Cahill of counsel Solicitor: Mr M Hammond Lander & Rogers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 9 August, 2002

Matter No. IRC 3994 of 2001 INSPECTOR STUART LARKIN v RICE GROWERS CO-OPERATIVE LIMITED

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

1 This is a prosecution by Inspector Stuart Larkin of the WorkCover Authority of New South Wales. In an Application for Order filed on 14 June 2001 the Inspector alleged that the defendant, Rice Growers Co-Operative Limited, failed to ensure the health, safety and welfare at work of its employees contrary to s 15(1) of the Occupational Health and Safety Act 1983.

2 It was alleged that the defendant failed to ensure the health, safety and welfare of an employee, Greg Wells, in that it failed to provide a system of work for the movement of forklift trucks and pedestrians that was safe and without risk to health at its premises in Banna Avenue, Griffith, in the State of New South Wales. In particular, it was alleged that the defendant failed to: (i) adequately separate forklift truck traffic from pedestrian traffic at the premises; and (ii) ensure that access ways for forklift truck and pedestrian traffic were kept clear of materials and other obstructions.

3 The defendant carried on milling, packing and the production of rice flour at its premises. On 16 June 1999 Mr Wells was struck by a forklift truck and injured as a result. The defendant entered a plea of guilty on 10 September 2001.

4 The parties filed an Agreed Statement of Facts that described the incident as follows: 3. On 16 June 1999 at approximately 3.30pm Wells, on his return from the amenities block at the premises, stepped out of a walkway between stacks of product when he was struck by the left tine of the forklift on his right side. As a result of the accident, Wells sustained multiple breaks in bones of his right foot and was unable to attend work for 2 months after the accident.

5 The agreed statement of facts stated that Inspector Larkin attended the defendant's premises on 26 October 1999 and made findings including the following: 6.1 The defendant has been conducting business for the past 50 years and currently employs 1200 personnel in New South Wales and Victoria. 6.2 At the time of the accident 90 personnel were employed at the premises. 6.3 At the time of the accident two men were working in the Raw Material Store. Emanuel Bernardi and Neil Casey were operating forklifts, loading product into the mill intake hopper, and taking finished product away for storage. 6.4 At all material times:

(a) Mr Bernardi and Mr Casey were the holders of Certificates of Competency with respect to the operation of forklift trucks issued by the WorkCover Authority; and (b) The defendant had in place a safe working procedure for forklift operations in which both Mr Bernardi and Mr Casey were trained. 6.5 The defendant's safe working procedure for forklift operations provided that:

(a) Forklift trucks were to be driven at about walking pace; (b) Forklift drivers were to sound the forklift truck's horn before putting the vehicle in motion; and (c) Forklift drivers were to sound the forklift truck's horn on approaching an intersection and in circumstances where vision was limited. 6.6 Mr Wells was working in the mill. He left the mill and walked to the amenities block. The walkway was straight across from the flour mill door to the amenities side of the store. 6.7 At the time of the accident the raw material store was being used to store 1.8t and 1.2t 'bulky bags' of products. These 'bulky bags' were 1.7m and 1.2m high respectively and at that time were stacked 2 high. Pallets of bagged flour were also stored to a height of approximately 4m. 6.8 A large amount of product was stored in the material store. Pathways were only wide enough for the forklift to get through, especially at the intake end of the store. 6.9 Storage areas, passageways and walkways in the raw material store had not been marked to separate forklift traffic from pedestrian traffic. 6.10 Accessways used by forklifts and pedestrians at the premises were not kept clear of materials and other obstructions in accordance with the Defendant's general safety instruction handbook. 6.11 At the time of the accident the forklift driven by Mr Bernardi had loaded product into the mill intake area and was returning to the main warehouse. The forklift driven by Mr Casey was reversing out of the Finished Product warehouse into the raw material store. 6.12 On Mr Wells' return from the amenities block Mr Wells looked to the left in the direction he thought Mr Casey's forklift was operating and saw that forklift. He then stepped out into the driveway and was struck by Mr Bernardi's forklift which was coming from the opposite direction. Mr Bernardi did not sound his horn on approaching the walkway in accordance with the defendant's safe working practice for forklift operations. Mr Wells did not look to his right before stepping out into the driveway.

7. Following the incident the defendant took the following action: 7.1 Walkways were marked in the raw material store separating forklift traffic from pedestrian movements. 7.2 Product is no longer stacked 2 high under the awnings and the quantity of product in the raw material store has been significantly reduced. 7.3 Additional training has been instituted to increase the safety awareness of employee forklift drivers and pedestrians using the premises. 6 A factual report prepared by the Inspector on 29 October 2000 was also tendered as evidence in the prosecutor's case, as was a record of prior convictions.

7 The defendant tendered in its case a number of documents illustrating steps it has taken since the incident to improve safety with respect to the operation of forklift trucks. Specifically, these documents show improved stacking practices, a number of photographs showing markings for walkways and other means of separating pedestrians from forklifts, a document entitled 'Forklift Safety', a consultant's report entitled 'Rice Growers Co-operative Walkway Safety Report', and literature with respect to a forklift alarm system installed at the defendant's premises. The defendant also tendered a 'lost time injury' chart, and documents indicating its progress in the WorkCover Authority's premium discount scheme.

8 Ms LM McManus, of counsel for the prosecutor, relied upon written submissions filed in court. The prosecutor's submission may be summarised as follows:

· The primary factor to be considered in relation to penalty was the objective seriousness of the offence: Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81; Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 at 185.

· The objective features of this case calling for a substantial penalty are: (a) The maximum penalty for a corporation prescribed by Parliament for the offence at the time it was committed was $825,000; (b) The need for general deterrence; (c) The nature of the offence in that it involved obvious risks and it was readily foreseeable; (d) The nature of the offence in that there were simple steps to remedy the failures; (e) The nature of the offence in that the injuries manifested the degree of the seriousness of the relevant detriment to safety.

· Where there is an obvious or foreseeable risk to safety and appropriate measures, although available and feasible, are not taken, the offence is a serious one: Lawrenson Diecasting at 26.

· The risk in this case was foreseeable because: (a) Forklifts were being operated in the raw material store loading finished product into the mill intake hopper and taking finished product away for storage. (b) The forklifts travelled from the finished product warehouse to the raw material store. (c) This involved travelling past the pedestrian walkway from the mill to the amenities block. (d) There were no markings to separate forklift traffic from pedestrian traffic. (e) A large amount of product was stored in the raw material store, stacked on pallets to heights of between 2.4m to 4m. (f) Accessways used by forklifts and pedestrians were not kept clear of materials and other obstructions. Pathways were only wide enough for the forklift to get through. (g) Mr Wells stepped into the driveway and was struck by the forklift driven by Mr Bernardi. · The work being done involved the operation and movement of forklift trucks in an area where there was pedestrian traffic and that the defendant had identified the risk in its safe working procedure.

· The failure of the defendant to implement simple and straightforward steps to remedy the defects in the system, in circumstances where such measures were available and feasible, is relevant to the objective seriousness of the offence: (WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (unreported, Schmidt J, 25 February 1994, at 12). The measures available included to: (a) ensure that the safe working procedure was followed; (b) ensure that walkways were marked separating forklift and pedestrian traffic; (c) ensure that product was stacked at a lower height and the quantity of product was reduced. This would ensure that visibility for both pedestrian and forklift operator was increased and accessways were clear. · The defendant implemented these measures after the incident.

· The gravity of the injury resulting from the breach, although not dictating the penalty, manifests the degree of seriousness of the detriment to safety (see Tyler v Sydney Electricity (1993) 47 IR 1 and Watson v Southern Asphalters Pty Ltd (1998) 83 IR 446 at 456). Although Mr Wells' injuries were serious, there was a risk of more serious injury resulting from an accident of this nature.

· The defendant entered a plea of guilty and is entitled to have such taken into account in assessing penalty according to the principles in the guideline judgment R v Thompson; R v Houlton (2000) NSWCCA 309 and following the decision in this court in WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW (2000) NSWIRComm 179.

· The defendant entered an early plea and the utilitarian value of such would be at the higher end of the scale.

9 Mr M P Cahill of counsel, for the defendant, tendered written submissions and supplemented them orally. Those submissions may be summarised as follows:

· The Defendant admits the prior convictions set out in the Certificate of Convictions dated 30 April 2002, and as such the maximum penalty applicable for this offence is, pursuant to s 51A of the Act, $825,000.

· This maximum penalty sets the upper limit against which an appropriate penalty is to be assessed. The maximum penalty is available to be utilised in a worst case scenario.

· The primary factor to be considered in determining the sentence to be imposed is the objective seriousness of the offence; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (2000) 99 IR 163.

· In the present case there are a number of factors indicative of a lower level of objective seriousness: (a) The operators of the defendant's forklift trucks held certificates of competency issued by the WorkCover Authority and were authorised to operate such machines; (b) The defendant had in place a safe working procedure for the operation of its forklift trucks prior to the subject incident; (c) The defendant's forklift operators, including Mr Bernardi, were trained in the defendant's safe working procedure for forklift trucks prior to the subject incident; (d) The safe operating procedure made provision for: (i) a safe operating speed (about walking pace); (ii) pedestrian right of way; (iii) the sounding of a forklift truck's horn before a forklift was put into motion; and (iv) the sounding of a forklift truck's horn on approaching an intersection.

· It follows that the defendant had not failed to pay attention to its obligations under the Act. The defendant had in place a system that addressed the safe operation of forklift trucks in the subject warehouse and took steps to train its operators in that system.

· The existence of settled safety procedures is a factor that mitigates the seriousness of an offence.

· Further, the Agreed Statement of Facts indicates that the Inspector found the subject premises in good order. The Inspector was satisfied with the lighting in the store and observes that the defendant's housekeeping in the area was excellent. The factual report prepared by the Inspector should be read in its entirety and placed in context. The Inspector made observations that the floor and buildings were well maintained, lighting and access to the mill appeared to be appropriate and the floor had white lines painted on it indicating walkways, although such lines were not marked at the time of the incident. This defendant's action in putting the white lines down shows, however, that within a very short time after the incident the defendant had taken steps to put in place proper methods of separating pedestrians and forklift trucks.

· The Inspector's observations will satisfy the Court that steps were taken by the defendant to deal with the specific issues within the ambit of the accident, or at the very least, it is not open to draw any conclusion negative about or critical of the defendant with respect to its behaviour after the incident.

· Nonetheless, the defendant concedes that it did fail to ensure that: (a) forklift traffic was adequately separated from pedestrian traffic at the premises; and (b) access ways for forklift truck and pedestrian traffic were kept clear of materials and other obstructions.

· Although Mr Wells' injuries were serious, there was not a risk of a more serious injury resulting from an accident of this nature.

· Prior to the incident there was in place a series of work practices which regulated the activities of forklift drivers. There is no suggestion that Mr Bernardi was operating the forklift at above the safe operating speed or operating the forklift with the tines at anything except the lowest position, that is, the closest to the floor as possible whilst moving forward. Those two matters are factors to be taken into account in determining the actual risk, as opposed to the greater risk asserted by the prosecutor. Whilst there was a risk of significant injury, it would be stretching things to suggest there were risks in these circumstances of any significant nature, that is, the massive internal injuries or death that may be associated with a collision at speed. That risk did not exist.

· In all the circumstances, the Court should be satisfied that the defendant's failures were an aberration. They represent a departure from good practices rather than a reflection of some general failure on the defendant's part to attend to its obligations under the Act.

· The conclusion that the defendant's failures were an aberration is given further support by the fact that in over 50 years of trading all previous convictions have been in respect of matters heard before the Local Court or the Chief Industrial Magistrate, the last of which being recorded in Leeton Local Court on 15 November 1990.

· The injured worker returned to work gradually from about two months after the incident.

10 The defendant made a number of submissions with respect to subjective factors it considered the Court ought to take into account in assessing an appropriate penalty. Those submissions may be summarised as follows: · The defendant is a trading co-operative incorporated under the Co-Operatives Act 1992 as amended. Membership of the defendant is restricted to rice growers and their families. The defendant operates with a view to promoting the interest of its members and to secure a fair return for their product, both locally and in the international market. The defendant's profits are returned to its members.

· Currently, the defendant employs over 1,200 people. It operates six rice mills, 20 storage facilities, two stockfeed mills, a research facility, a process foods group and sales offices in Sydney, Melbourne, Brisbane, Perth and Adelaide. The defendant also has subsidiaries and joint venture operations in Australia, Papua New Guinea, the Solomon Islands, Japan and the United Kingdom.

· The defendant exports up to 90 per cent of its crop annually and is the last rice trader in the world to survive without production and export subsidies.

· The defendant's crop year runs from 1 May to 30 April. For the crop year ending 30 April 2002, the defendant's operations are being adversely affected by the following factors: (a) A relatively poor crop; (b) A 15 year low in prices on the world rice market; (c) The recent approval by the United States of America of additional subsidies for its rice producers.

· The crop prices to 30 April 2002 were $192 per tonne, a $40 per tonne decrease on prices in 2000. The defendant considers a price of between $230 and $250 per tonne a reasonable return. Fifty per cent of the defendant's member farms become marginal when the price drops below $170 per tonne. It is submitted that the defendant is not operating in optimum economic circumstances, and, according to s 6 of the Fines Act 1996 and the general principles of sentencing these factors should be taken into account in considering the defendant's capacity to pay a fine and the assessment of an appropriate penalty.

· The defendant entered a plea of guilty at a very early stage. In the circumstances, the defendant is entitled to the full benefit of its early plea and assistance to the WorkCover Authority in the investigation of this matter.

· In the period since the incident the defendant has renewed its commitment to occupational health and safety by taking steps to ameliorate the particular risks identified following the incident. The defendant introduced changes with respect to the following risk factors: (a) Storage practices in the raw material store; (b) Separation of pedestrians and forklifts with line markings and barriers; (c) Forklift driver training, in particular, adherence to safe operating procedures.

· The defendant undertook a further review of its forklift operations on 15 September 2001. Subsequent to this the defendant has entered contracts for: (a) The standardisation of walkway colours and signage throughout its facilities, including the use of long life paint; (b) Increased use of signage and guardrails throughout its facilities (particularly older facilities); (c) Ongoing and periodic external training to make sure staff are aware of pedestrian safety issues in its facilities; (d) The purchase and installation of the Amskan fork alert system in relevant facilities.

· Further, since the incident the defendant employed a new Occupational Health and Safety manager, who undertook a full review of the defendant's occupational health and safety program. The manager implemented a new system of occupational health and safety management. This system is designed to ensure: (a) acceptance of responsibility for occupational health and safety at Board level; (b) "ownership" of occupational health and safety management by line managers operating in their day to day management of the defendant's business activities; (c) recognition by all workers that the defendant is committed to occupational health and safety outcomes and requires commitment to those outcomes from its employees.

· To date the new system has delivered a 65 per cent reduction in lost time injuries, a 35 per cent reduction in workers' compensation claims from 2000 to 2001 with a further 25 per cent decrease to date in 2002, and a 45 per cent reduction in days lost due to lost time injuries.

· The new system has also seen line management accept responsibility for occupational health and safety implementation and auditing and the defendant successfully complete the first phase of the WorkCover Premium Discount Audit Scheme. The defendant's ongoing commitment to an improved occupational health and safety system is also demonstrated by trials and plans it is undertaking and developing.

· Given the commitment of the defendant to occupational health and safety prior to the incident and the introduction and commitment to new measures since the incident it is submitted that the principles of general deterrence and specific deterrence have limited application in the circumstances of this case.

· The defendant's commitment to occupational health and safety ought satisfy the Court that the defendant is unlikely to reoffend. The court can discount the need for specific deterrence because the defendant does not need to be compelled to pay attention to occupational health and safety issues so that persons are not exposed to risks at their workplace (see Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 99 IR 29 at pp 60-61).

· The weight given to general deterrence should be discounted in the circumstances of the present case. The imposition of a significant fine would have a deleterious effect, rather than promoting the purposes of the Act. The imposition of a significant penalty to reflect general deterrence in circumstances where the defendant has shown real contrition and a real commitment to rehabilitation is likely to cause others to question the wisdom of rehabilitation. It is likely to cause other offenders to reflect that there is no real benefit to be obtained from such a course and that one might be better off saving one's money to meet the fine rather than pursuing the purposes of the Act.

· The defendant has a demonstrated commitment to the community in which it operates, contributing significantly to cultural, educational, environmental and tourist events and initiatives.

11 After reviewing the agreed facts and in light of the charge and the particulars thereof, I am satisfied that the offence has been proven. The plea of guilty by the defendant was properly made and I enter a verdict accordingly. Consideration

12 In WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 at par 19 and after referring to Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 at par 42, WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at pp 185-187 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 at par 82, Hungerford J summarised the proper approach to be taken to sentencing as follows: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. 13 In considering the culpability of the defendant in this case, it is to be observed that passageways and walkways in the raw material store had not been marked to separate forklift traffic from pedestrian traffic; access ways used by forklifts and pedestrians were not kept clear of materials and other obstructions; a large amount of material was stored in the store, some of it at heights of between 2.4 to 4 metres; pathways were only wide enough for the forklift to get through, especially at the intake end of the store. In other words, the store was crowded to the extent that materials obstructed access ways; vision was impaired and there was an inadequate system in place to ensure that forklift traffic and pedestrian traffic were separated.

14 The risk to safety was readily foreseeable. Indeed, the defendant's safe working procedure for forklift operation provided that drivers were to sound the forklift's horn on approaching an intersection and in circumstances where vision was limited. So the possibility of a forklift colliding with a pedestrian at an intersection of a driveway and a walkway was clearly in the defendant's contemplation.

15 I also accept the prosecutor's contention that there were straightforward steps available to the defendant to remedy any defects in its system of work in the raw material store. The defendant implemented these steps following the accident.

16 As to the gravity of the injury, Mr Wells sustained multiple breaks to his right foot and was unable to attend for work for a period of two months. The prosecutor submitted that the injury was serious and that given the nature of the accident the risk of injury was greater than the actual injury suffered. In this respect, the forklift driver was not travelling at a speed in excess of the required speed (about walking pace) and, in accordance with safe working procedures, the tines on the forklift were close to the ground. It is most unlikely the gravamen of the risk was greater than that represented by the injury.

17 The principal factors indicative of a lower level of objective seriousness in this matter were the existence of a safe working procedure for the operation of forklift trucks and the fact that the forklift operators were trained in the procedure. The procedure made provision for: (i) a safe operating speed (about walking pace); (ii) pedestrian right of way; (iii) the sounding of a forklift truck's horn before a forklift was put in motion; and, (iv) the sounding of a forklift truck's horn on approaching an intersection.

18 In this case it would appear that a contributing factor to the procedure falling down was the forklift driver's failure to sound the horn as he approached the intersection from where Mr Wells emerged. As Mr Cahill submitted, the existence of settled safety procedures and instructions is a factor that mitigates the seriousness of the offence: see Warman International Ltd v WorkCover Authority of NSW (1998) 80 IR 326; WorkCover Authority of NSW (Inspector Riley v Broken Hill Proprietary Company Limited (1998) 83 IR 427; Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Ltd (1999) 92 IR 8.

19 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186: 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 worst case 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 penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. 20 The maximum penalty in this matter is, given the defendant's previous convictions, $825,000, which is a large penalty.

21 In relation to deterrence, the associated principles were recently discussed by a Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80]. I adopt that discussion for the purposes of determining sentence in this case. As to general deterrence, the important consideration is to set the penalty at a level that will realistically operate as a deterrent but not so high as to be oppressive. As to specific deterrence, the defendant has taken commendable steps to avoid a recurrence of the risk and to review the whole of its occupational health and safety policies and procedures. I also consider the defendant is genuinely contrite. Little could be gained, in my opinion, in placing significant weight on the need for specific deterrence in assessing any penalty in this case.

22 Mr Cahill referred to a number of subjective factors that he submitted should be taken into account in sentencing. In summary these factors were:

1. The defendant is a Cooperative and its profits are returned to members. 2. The Cooperative's operations are being adversely affected by a relatively poor crop; by low world prices for rice; and, by US subsidies for its rice producers. These factors should be taken into account in assessing the Cooperative's capacity to pay a fine and in the assessment of the appropriate penalty to be applied. 3. The Cooperative pleaded guilty at a very early stage. 4. The Cooperative assisted the prosecutor in his investigations. 5. The Cooperative has reviewed its occupational health and safety procedures and taken steps to improve those procedures including an auditing process. 6. The Cooperative has taken steps to ameliorate the particular risks that were given rise to the charge in this matter and has put in place significant improvements in relation to its forklift operations. 7. As a result of improvements to occupational health and safety there has been a significant and identifiable decrease in lost time injuries. 8. The Cooperative is committed to an ongoing program of occupational health and safety improvement. 9. The Cooperative appointed an Occupational Health and Safety Manager. 10. The Cooperative has an ongoing commitment to the community of which it is a member. It sponsors community events, operates a tertiary education scholarship and runs an environmental program. 11. The Cooperative has been in operation for 50 years and whilst it has prior convictions the last conviction was in 1990. 23 I also note the report by the prosecutor following his visit to the defendant's premises on 26 October 1996 where the Inspector observed that the raw material store was well maintained and in good condition and that housekeeping was excellent.

24 In considering a just and appropriate penalty in this case I have considered the objective seriousness of the offence as well as subjective factors including the commendable steps taken by the defendant to remedy the deficiencies in its system of health and safety, cooperation with WorkCover, the defendant's character as a corporate citizen, the state of the international rice market, the expression of contrition and the defendant's ongoing commitment to occupational health and safety.

25 In all the circumstances I would assess an appropriate penalty at $40,000. The defendant is entitled to a discount by reason of its early plea of guilty, which I would assess at 25 percent. Accordingly the resultant fine should be reduced to $30,000. The prosecutor shall have a moiety of the fine.

1. The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $30,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's costs in an amount as agreed, or in default of agreement, as assessed.

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