(viii) The back up system is to use the wiggins bells.
4 In addition, there was tendered into evidence a number of affidavits and other documents. These included affidavits of Peter Eggleston, Barry Cahill, Simon Billing, Bradley Rowbotham, Bob Morley and Timothy Clifton.
5 I acknowledge receiving Victim Impact Statements of Brian Andrew and Joyce Nairn, the parents of Darren Andrew. This Court expresses its sympathy in the sad and tragic loss of a son and the effect that this loss has had on his family. It may be observed, also, as was mentioned by counsel for the defendant, that this accident has had a profound effect on all persons associated with Perilya including not only Mr Andrew's fellow work mates but also at all levels of management in the company. No doubt that impact has been exacerbated by the circumstances of the close-knit community at Broken Hill where the incident occurred.
6 The incident which occurred and which has given rise to these proceedings must be seen in the context of an overall factual background which includes the following matters as established by the evidence:
1) When Perilya purchased the mine from the Pasminco organisation, much of the equipment and infrastructure was in a poor state and needed to be made good or replaced.
2) Under Pasminco there was a poor lost-time injury rate at the mine, which was about four times the Australian average for mining operations.
3) 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.
4) Perilya reviewed the operation of the cage and in particular persons who would use the cage. Under Pasminco there were dedicated platmen, although when these dedicated platmen were not working, it seems that there was no particular system to make sure that only authorised and competent people operated the cage. Perilya removed dedicated platmen and required persons employed in the mine to operate the cage as part of their ordinary duties, on the basis that those persons had been recognised as competent to do so and had received any necessary training to make them competent. Such a move was criticised as being unsafe by some employees and by a CFMEU industrial officer.
7 Although, as is revealed in the agreed facts document, which I have set out, there were deficiencies in the Perilya procedures for the operation of the cage, overall Perilya has demonstrated a strong commitment to occupational health and safety matters and has demonstrated awareness of the need to comply with its obligations to employees, which are created by the Act.
8 After the incident, Perilya took a number of steps to remove any risk to safety arising out of the operation of the cage. They are set out in the agreed facts document.
9 The process by which a court assesses a penalty is established by principles developed by the High Court of Australia and the New South Wales Court of Criminal Appeal and is also governed by principles contained within the Crimes (Sentencing Procedure) Act 1999.
10 The commencement point for the determination of an appropriate penalty is an assessment of the objective seriousness of the offence. The maximum penalty that applies to this defendant is $550,000. That is, however, reserved for what is called a "worst case" crime. In the context of a breach of occupational health and safety laws, a worst case scenario would apply to a defendant who had no regard at all for any occupational health and safety obligations and took no steps of any kind to try and comply with obligations created by that legislation. If, against this background, there was an incident which, for example, was caused in circumstances where there was no safety equipment, no training or instruction or supervision and there were no procedures of any kind in place to make the particular operation safe, then this is the type of situation which one could look at in terms of a worst case scenario.
11 However, the circumstances that apply to Perilya are far from this type of situation. There is evidence that it did have in place a comprehensive set of rules governing the way in which mining operations would occur with particular regard to the safety of employees, it had provided equipment that would allow work to be carried out safely, it had provided instruction, training and supervision to employees who were working in the mine and, in the context of the operation of the cage, did have in place some processes and procedures, even though they were not altogether as safe as the procedures that were introduced after the incident.
12 In assessing the objective seriousness of the offence, it is also necessary to look very carefully at what actually happened in connection with the operation of the cage when this unfortunate incident occurred. As is obvious, in all the circumstances, Mr Andrew should not have been left alone in the cage. He had only started employment with Perilya some little time before the incident and was not authorised to operate the cage. There is evidence from both Mr Morley and Mr Rowbotham that Mr Andrew had been given some information about how the cage operated but there was no assessment by either of these persons that Mr Andrew was competent to do so. The cage was able to move at some speed and its door was able to be opened whilst the cage was moving. True it is that no one would have expected the cage door to have opened and Mr Andrew's head to have come into contact with the nip point, as is clearly what happened. However, why this happened and under what circumstances will never be known and it is not profitable to speculate any more about the accident. Nor, given the lack of any evidence about this matter, is it appropriate that this Court speculate in any way as to these circumstances. It is sufficient to observe that the failure to ensure that only an authorised and competent person operated the cage coupled with a failure to allow other employees to be able to identify whether an authorised person was in fact operating the cage and the ability of the cage to move with the door open all brought about a situation where the defendant clearly failed in its absolute obligation to ensure the health and safety of Mr Andrew on this occasion.
13 I regard the breach by the defendant of its obligations under s 8(1) of the Act as a most serious one and the penalty will need to reflect this.
14 It is also necessary to take into account the deterrent effect of penalties that are imposed for criminal behaviour. The fixing of an appropriate penalty will serve to deter others in the mining industry from failing to meet their obligations. It will also deter this defendant from breaching its occupational health and safety obligations in the future. In this regard, however, I take into account the comprehensive steps taken by the defendant immediately after the incident that are designed to make sure that an accident of this kind will never occur again.
15 The sentencing principles to which I have referred allow a penalty to be reduced having regard to a number of matters. These include the fact that the defendant pleaded guilty at the earliest opportunity, namely immediately after the prosecution amended the charge. Furthermore, the penalty must be reduced to reflect the fact that the defendant has taken comprehensive steps, as I have said, to ensure that an incident of this kind will not occur again, that Perilya has co-operated fully with the prosecutor in carrying out its investigations, has expressed remorse and contrition for what has occurred, especially by taking steps to assist the families of Mr Andrew and has no prior convictions for any occupational health and safety breach. All of these matters when combined require the Court to apply a significant discount to the penalty that would otherwise have been imposed.
16 I repeat an observation earlier made that whilst this is a most serious offence, it cannot be characterised in any way as being a worst case scenario.
17 Accordingly, I intend fixing a penalty of $95,000.
18 The prosecutor sought a moiety of the penalty and a costs order, neither of which was opposed.