(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.
(2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.
(3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate.
(4) Despite subsections (1), (2) and (3), a court:
(a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and
(b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.
(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.
11 In the unfortunate circumstances of these proceedings, the primary victim of the Victim Impact Statement has died as a direct result of the offence with which the corporation has been charged. I would apply s 28 so that in the circumstances of these proceedings subsection (3) mandates the receipt of Victim Impact Statement and its acknowledgment and there is no temporal condition imposed as to the time when the Victim Impact Statement may be received. This is to be contrasted with the provisions of subsection (1), which, firstly, creates a discretion as to whether a Victim Impact Statement may be received and, secondly, determines the stage in the proceedings when such a statement may be received. Subsection (3) would therefore appear to have the result that the Victim Impact Statement may be received prior to conviction if that pre-condition has been met. Certainly, in the context of these proceedings, the relevant statements were tendered to the Court by the prosecutor prior to conviction, with no objection being raised by the defendant.
12 Evidence given in the proceedings indicated that Mr Andrew undertook an induction process in October 2002. He commenced work on 21 October 2002.
13 Whilst it is clear that Mr Andrew was killed when his head came into contact with the protruding nip point as the cage was ascending, there is no explanation concerning the reason why, or the circumstances in which, the cage door had opened and Mr Andrew had placed his head outside the cage in a position where he was liable to be struck by the nip point. The evidence of Messrs Rowbotham and Morley is to the effect that Mr Andrew had been shown how to operate the cage, although it was clear that he had not been authorised in any formal sense to do so. Having not been so formally authorised, Mr Andrew should not have been left alone in the cage and required to operate it on the ascent up to the level to which he was travelling. This is, in my opinion, the gravamen of the breach of the Act.
14 As the agreed facts document demonstrates, there had been two prior incidents concerning the operation of the cage, both of which had resulted in remedial action by Perilya.
15 The circumstances of the defendant and his involvement in and about the operations of the mine, including specifically the safe operation of the mine, assumed significance for the purpose of the penalty hearing, for reasons that I shall shortly develop. The evidence was that the defendant was the Director of Operations of Perilya from June 2002 to March 2004. He had commenced employment with that company on 1 February 2000 and had previously worked on a contract basis. Mr Cahill has a long history of employment in the mining industry, particularly at senior managerial level. The totality of the evidence in the proceedings was to the effect that Mr Cahill had a strong commitment to safe mining operations and the safety of all persons performing work at the operations for which he had managerial responsibility. He was intricately involved in the acquisition by Perilya of the mine at Broken Hill at which the incident occurred. This involved a lengthy process including a due diligence investigation which led to the acquisition by Perilya of the mine from Pasminco Broken Hill Mine Pty Ltd ("Pasminco"). The due diligence commenced in 2000 and took two years to complete. The mine was acquired by Perilya on 31 May 2002.
16 Upon acquisition, the defendant determined to make a number of substantial changes to the operation of the mine. Many of these were directed to safety issues, particularly as the injury rate at the mine under the Pasminco operation was said to be four times higher than the national average in the mining industry.
17 The defendant was appointed to the statutory position of mine manager on about 31 May 2002. It was determined that much of the mining equipment and mine infrastructure was in poor condition and needed to be replaced or upgraded.
18 Following an extensive audit of the state of the mine, the defendant determined that it was necessary to shut down its operations completely for a period of four weeks to allow it to be upgraded. Significant improvements, including those directed to safety of operations, were made during this period. Some of the matters that were the subject of rectification or improvement included the upgrading of underground roads, removal of a number of hazards, the removal of accumulated lead dust, the repainting and refitting of the change house and crib rooms, the fitting of seat belts to mobile equipment, the provision of appropriate uniforms, the introduction of laundry facilities for uniforms, the prohibition of smoking, the expansion of designated hard hat areas, extensive mapping of the mining operation, and, significantly for safety, the introduction of formal workplace inspections, job safety analysis and the establishment of a safety committee. External consultants were retained to develop a training program. Furthermore, all persons who were employed by Perilya were required to undergo a pre-employment medical examination and a five-day induction program. The evidence is to the effect that employee safety occupied a significant part of the induction program. A complementary safety management program was also developed by external consultants, which is comprehensive in nature and which extended to all facets of the operation of the mine. This included the holding of regular meetings extending over the whole of the workforce to discuss not only the work that was to be performed during each work period but also the safety aspects associated with the carrying out of that work.
19 The defendant ceased being the resident manager of the mine in late August 2002. However, he retained overall authority as Director of Operations. At the date of the incident, the defendant was residing in Perth.
20 In considering the question of penalty, Mr Hodgkinson SC, who with Mr M Shume of counsel appeared for the defendant, submitted that the Court should have regard to the following factual matters:
1) The defendant was not directly involved in the operation of the mine on the date of the incident.
2) The defendant had, throughout his involvement in the mine, engaged proactively in ensuring the safe operation of the mine and had demonstrated a commitment to safety matters.
3) The defendant had had to labour under some difficulty having inherited a poor mining structure and practices and a less than satisfactory safety record. This involved the necessity to change the operational culture of the mine so as to reduce the pre-existing high injury rate. All of this had to be attended to quickly because many of the problems that were encountered had not been disclosed in the due diligence process.
4) The defendant had closed the mine prior to Perilya commencing operations to allow the safety and other matters to be addressed.
5) The defendant ensured that the approach to safety that he implemented applied throughout the whole of the workforce including those at managerial level.
6) The defendant had put in place a process to ensure that only appropriately qualified persons were employed at the mine and that they had been instructed and trained appropriately by reason of a comprehensive induction process with an emphasis on safety.
7) The defendant had ensured that the procedures and protocols used by Perilya particularly with respect to the operation of the cage and the use of platmen had been appropriately reviewed, particularly after the two prior incidents.
8) The regular safety meetings and the involvement of various levels of management and the workforce as a whole were an example of the commitment by the defendant to safety and the manner in which he ensured that commitment pervaded the totality of the operations of the mine.
21 The Court was informed by the defendant's counsel that the defendant had agreed to pay the prosecutor's costs in the sum of $45,000.
22 It was submitted on behalf of the defendant that he should have the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. S 10 is in the following terms:
10 Dismissal of charges and conditional discharge of offender