Morrison v Powercoal Pty Ltd & Anor.

PERSONAL RESPONDENT (IRC No 7069 of 2003) Peter Lamont Foster

CORAM: Walton J Vice-President; Boland J; Staff J

Occupational health and safety - Appeal - Sentencing proceedings on appeal involving corporate and personal respondents - Coalmining industry - Workplace fatality - Sentencing principles in occupational health and safety prosecutions - Maximum penalty - Application of s 51A of Occupational Health and Safety Act 1983 - Whether for the purposes of s 51A the relevant date is the date the conviction is recorded or the date of the previous offence - Where two offences are heard concurrently whether conviction/sentence in both should result in one of the offences being treated as a second offence and attract provisions of s 51A - Principle of totality - Double jeopardy - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Section 10 to be applied in extraordinary and highly exceptional circumstances -Considerations regarding the application of s 10 to personal respondent - Section 10 applied - Costs - Whether notice of appeal covered an order for costs - Whether Court has power to make costs order in an appeal under s 197A of the Industrial Relations Act 1996 - Considerations regarding the exercise of discretion in respect of whether the appellant is entitled to costs orders in relation to the trial at first instance and costs on appeal - Convictions recorded against corporate respondent and fines imposed - No convictions against personal respondent and charges dismissed - Costs orders against corporate respondent relating to costs at first instance and on appeal- No costs orders against personal respondent

CATCHWORDS: Appeal - Occupational health and safety - Sentencing proceedings on appeal involving corporate and personal respondents - Coalmining industry - Workplace fatality - Sentencing principles in occupational health and safety prosecutions - Maximum penalty - Application of s 51A of Occupational Health and Safety Act 1983 - Whether for the purposes of s 51A the relevant date is the date the conviction is recorded or the date of the previous offence - Where two offences are heard concurrently whether conviction/sentence in both should result in one of the offences being treated as a second offence and attract provisions of s 51A - Principle of totality - Double jeopardy - Section 10 of Crimes (Sentencing Procedure) Act 1999 - Section 10 to be applied in extraordinary and highly exceptional circumstances -Considerations regarding the application of s 10 to personal respondent - Section 10 applied - Costs - Whether notice of appeal covered an order for costs - Whether Court has power to make costs order in an appeal under s 197A of the Industrial Relations Act 1996 - Considerations regarding the exercise of discretion in respect of whether the appellant is entitled to costs orders in relation to the trial at first instance and costs on appeal - Convictions recorded against corporate respondent and fines imposed - No convictions against personal respondent and charges dismissed - Costs orders against corporate respondent relating to costs at first instance and on appeal- No costs orders against personal respondent

Costs - Whether notice of appeal covered an order for costs - Whether Court has power to make costs order in an appeal under s 197A of the Industrial Relations Act 1996 - Considerations regarding the exercise of discretion in respect of whether the appellant is entitled to costs orders in relation to the trial at first instance and costs on appeal - Convictions recorded against corporate respondent and fines imposed - No convictions against personal respondent and charges dismissed - Costs orders against corporate respondent relating to costs at first instance and on appeal - No costs orders against personal respondent

Coal Mines Regulation Act 1982 Crimes (Sentencing Procedure) Act 1999 s 3 s 10 s 21A LEGISLATION CITED: Industrial Relations Act 1996 s 170 s 181 s 197A Occupational Health and Safety Act 1983 s 15 s 49A s 50 s 51A Occupational Health and Safety Act 1985 (Vic) s 21(1)

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348 DPP v Esso Australia Pty Ltd [2001] VSC 263 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384. Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Ltd & Anor. (No. 2) [2005] NSWIRComm 6 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342 Morrison v Powercoal Pty Ltd and Anor [2004] NSWIRComm 297 CASES CITED: R v Leonard Raymond Moon [2000] NSWCCA 534 Regina v Way [2004] NSWCCA 131 Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440 Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 Veen v The Queen (No 2) (1988) 164 CLR 465 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122

APPELLANT Mr S Crawshaw SC with Mr B G Docking of counsel Solicitor: I V Knight Crown Solicitor's Office LEGAL REPRESENTATIVES:

RESPONDENTS Mr S C Rothman SC with Mr M L Shume and Mrs W G Thompson of counsel Solicitor: Mr G McCann Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH Coram: Walton J Vice-President Boland J Staff J

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6372 and 6376 of 2001

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6375 and 6377 of 2001

1 Powercoal Pty Ltd (the corporate respondent) and Peter Lamont Foster (the personal respondent) were both charged with offences under the Occupational Health and Safety Act 1983 in relation to an incident that occurred on 17 July 1998 when the roof of an underground mine collapsed at the Awaba colliery. A miner, Barry John Edwards, suffered fatal injuries as a result of the collapse.

2 The corporate respondent was the owner and operator of the mine and the employer of the relevant employees who worked in the area of the mine known as 304 Panel on 15, 16 and 17 July 1998. The charge against the corporate respondent alleged in Matter No IRC 6372 of 2001 was as follows: Between about December 1996 and 17 July 1998 at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Barry John Edwards, in that it failed to provide a safe system of work contrary to section 15(1) of the Occupational Health and Safety Act 1983.

3 It was further alleged in Matter No IRC 6376 of 2001: Between about 23 September 1993 and 17 July 1998 at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Barry John Edwards, in that it failed to provide a safe system of work contrary to s15(1) of the Occupational Health and Safety Act, 1983.

4 Mr Foster was the mine manager employed by the corporate respondent and he was charged with two counts under s 50 of the Act. This provision is to the effect that where a corporation contravenes the Act, whether by act or omission, each director of the corporation and each person concerned in the management of the corporation shall be deemed to have contravened the same provisions unless the court is able to be satisfied that the person was not in a position to influence the conduct of the corporation in relation to the contravention or, being in such a position (that is to influence) used all due diligence to prevent contravention by the corporation.

5 In Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342, a judgment of Peterson J given on 21 November 2003, his Honour dismissed all of the charges against the two defendants. The prosecutor appealed pursuant to s 197A of the Industrial Relations Act 1996 and in Morrison v Powercoal Pty Ltd and Anor [2004] NSWIRComm 297 this Full Bench upheld the appeals and found both defendants guilty of the offences charged. This judgment deals with sentencing and costs.

6 The two charges brought pursuant to s 15(1) of the Act were referred to in the proceedings as the "assessment charge" and the "recording and notification charge". For present purposes, the relevant particulars of the assessment charge were that: viii) on 17 July 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator, Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Kevin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees") …

xi) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there.

(xii) the defendant's failure and/or omission was the failure and/or omission to provide or maintain an adequate system for assessing the safety of the roof in the vicinity of 304 Panel at 25 CT in the vicinity of 1, 2 and 3 headings.

xiii) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (viii) above and the defendant's failure and/or omission as dealt with in paragraph (xii).

7 Similarly, we refer to the relevant particulars of the recording and notification charge, which were as follows: ix) on 17 July 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator; Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Kevin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees") ...

xii) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there.

xiii) the defendant's failure and/or omission was the failure and/or omission to implement an adequate system of recording and notification to employees of roof problems and roof history;

xiv) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (ix) above and the defendant's failure and/or omission as dealt with in paragraph (xiii).

8 In relation to the nature of the risk to health and safety the Full Bench found as follows at [115]-[116]: 115 Thus, whilst the corporate respondent was not aware of the precise nature of the weakness in the roof, there were definite warning signs that the roof presented a risk to safety. It could not be said, in these circumstances, that a risk of the roof falling was impossible to anticipate or even that it was merely speculative or unduly remote. Accordingly, there was a clear obligation on the defendant to take measures to protect employees against the risk of the roof falling in. But, importantly, even absent these warning signs, the obligation remained on the defendant to ensure the safety of employees: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209.

116 Senior counsel for the respondents submitted that the signs of poor roof did not evidence a risk beyond that normally encountered beyond the inherent risk of working in a mine. It might be correct that the signs of poor roof did not indicate the presence of the particular weakness that eventually contributed to the collapse of the roof. But that is not the point. The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety. It could not be assumed in these circumstances (regardless of whether stook X had remained intact), that the risk ended at the edge of the goaf area adjoining 25 cut through and that persons working beyond the goaf area were, therefore, safe. There was evidence that in the process of pillar stripping a roof fall can run into the working area.

9 In relation to the assessment charge, in finding a breach of the duty in s 15(1), the Full Bench stated at [130]: The respondents contended that the risk of the roof falling as a consequence of the weakness referred to in the expert evidence was not known and not detectable. Therefore, it was submitted, no act or omission with which the employer is charged is causative of the danger to employees. We have found, however, that there were clear signs pointing to the potential of a roof fall in the relevant area thereby giving rise to a risk to health and safety. The failure to adequately assess this risk meant there was a failure to avert the risk to safety of the roof falling in.

10 In relation to the recording and notification charge, in finding a breach of the duty in s 15(1), the Full Bench stated at [138]: As to his Honour's finding that the nature of the roof was undetectable at first workings, we assume, because it is not clear, his Honour meant that the particular weakness in the roof identified by Dr Moelle that contributed to it falling in, was not known at first workings. Clearly, however, those employees engaged in first workings considered the roofs in the stubs of 1 and 3 Headings to be poor. It was described as "drummy" by Mr Johnson and as warranting comprehensive support in the form of W straps in 3 Heading and extra roof bolting in 1 Heading. Even if the roof in 1 and 3 Heading could not be described as non-conglomerate, it was most definitely inferior conglomerate and according to the Pillar Extraction Approval Conditions "may give no warning of collapse". Approval Condition 8 required such roof to be denoted and placed on all plans associated with pillar extraction. This was not done. … And further, at [142]-[143]: 142 In our opinion, if all of the indications of poor roof had been collected and recorded in a plan relating to the extraction process - a plan considered by Dr Galvin to be important in evaluating the magnitude, nature and direction of geological features; had the plan been continually updated during second workings; and, had such information been notified to employees, it would have conveyed to these employees that they could not proceed on the assumption they were working in connection with the relative safety of a solid conglomerate roof and that if work was to proceed it should only be in the most careful manner. It would also have become evident to the corporate respondent that it needed to take steps to ensure that the risk to safety of the roof falling in did not impact on employees whilst they were working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998.

143 We consider that the failure on the part of the corporate respondent to implement an adequate system of recording and notification to employees of roof problems and roof history was a causal factor in the corporate respondent's failure to ensure that employees were not exposed to the risk of the roof falling in while the employees were working in the relevant area between 15 and 17 July 1998.

11 The guilty findings in relation to the corporate defendant are recorded in our earlier judgment at [144]. Pursuant to s 50(1) of the Occupational Health and Safety Act the personal respondent was found to have contravened s 15(1) of that Act. In that regard the Full Bench found at [173]-[175]: 173 Having regard to the evidence in these proceedings and what was said in Bracht and Griggs, we consider Mr Foster was concerned in the management of the corporate respondent. The evidence in this respect was that Mr Foster was the mine manager and, as the appellant submitted, he had "the highest level of supervisory control of all matters at the Awaba Colliery and ultimate supervisory control over all occupational health and safety matter at the Awaba Colliery." 174 Pursuant to s 37 of the CMR Act Mr Foster, as mine manager, had full charge and control of all employees at the mine, and all operations at the mine. His duties and functions included the requirement to enforce the observance by all mine employees of the CMR Act, regulations, rules and any schemes and any directions or conditions of exemptions or approvals given under the relevant legislation. Further, pursuant to s 37(2)(c)(ii) of the CMR Act the manager of a mine shall ensure the roof and sides or working places and roadways in the mine are adequately supported where necessary for safety.

175 Finally, in this respect there was evidence that Mr Foster's position responsibilities within the corporate respondent included developing and implementing a safety management plan for Awaba Colliery in accordance with the company's policies; controlling costs in accordance with the company's Business Plan's targets; managing mine planning and production to achieve Business Plan production levels; overseeing the mine's activities for environmental purposes and community expectations; producing quality coal products which meet customers' requirements; and, identifying and implementing workplace reforms which lead to more flexible and efficient operations.

12 The respondents on appeal relied on the defences under s 53 of the Act. We found that that both respondents failed to make out those defences.

13 The principles of sentencing in this Court are now well settled. We do not repeat them here except to note that the sentencing practice established in this Court under the Occupational Health and Safety Act conforms with the requirements of that Act and the Crimes (Sentencing Procedure) Act 1999 (see sections 3A, 21A, 22, 22A and 23). It involves a consideration of both the objective and subjective factors relevant to the offence and the offender. The primary factor is the objective seriousness of the offence, which involves an objective assessment of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. Subjective factors play a subsidiary role in the determination of penalty. In Lawrenson Diecasting at 475 the Full Bench put it this way: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

14 We endorse what Hungerford J said in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 386 in relation to the duty of the Court in the important area of occupational health and safety and that is: [T]o 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.

15 We also adopt, with respect, the following observations of the Chief Justice as to established sentencing practice in Regina v Way [2004] NSWCCA 131 at [121]: The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

16 There are a number of relevant considerations in determining the objective seriousness of the offences that are the subject of these proceedings. In this respect, a fundamental consideration will be the maximum penalty for the offences. As Wright J, President explained in WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (2000) 99 IR 163 at [23]: [T]he task of the Court is … 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. Although some cases have referred to the consideration that a penalty should not be "oppressively high", such dicta should not be considered as qualifying the approach to balancing subjective and objective factors expressed in Waugh : see Albury City Council at 411; Lawrenson Diecasting Pty Limited at 474 - 475; Dowling v Overtop Pty Limited at 333; Ferguson v Nelmac Pty Limited at 208 - 209; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 78 - 79.

17 In Leonard Raymond Moon v R [2000] NSWCCA 534 at [70] Howie J also made reference to the relevance of the maximum penalty as follows: [70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

18 We also note the recent discussion by Walton J, Vice-President as to the consideration of the maximum penalty in sentencing in Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 at [44] - [45].

Additional penalties where prior conviction concerns later offence

19 An issue has arisen in these proceedings as to what are the maximum penalties applicable in the case of both the corporate and personal respondents. It was common ground that the maximum penalty prescribed by the Parliament for the present corporate offences is $550,000 for any first offence. The maximum penalty prescribed by the Parliament for the present personal respondent offences is $55,000 for any first offence.

20 The prosecutor submitted, however, that as the corporate respondent had been convicted of an offence under the Occupational Health & Safety Act that, pursuant to s 51A of the Act, the maximum penalty in respect of each offence for the corporate respondent is $825,000. We will turn to deal with the personal respondent's position later in these reasons.

21 The issue is, does s 51A apply where: (a) the present offences before the Court were committed before a later offence was committed; (b) the later offence in time was the subject of a conviction; and, (c) the conviction in the later offence was imposed before sentencing in the present matter?

22 Senior counsel for the corporate respondent submitted that where a defendant had previously been convicted of an offence, the relevant date is not the date that the conviction was recorded, but rather that s 51A operates to make the relevant date the date when the offence was committed.

23 The competing constructions of s 51A clearly would have different results, so far as the maximum penalty is concerned, in the circumstances of the corporate respondent. If the trigger for the imposition of the higher penalty were the corporate respondent's record at the time of the commission of these offences, s 51A would not apply. When these offences were committed between September 1993 and 17 July 1998, the latter date being when the roof of the mine collapsed, the corporate respondent had no prior record of an offence having been committed. If the trigger were the record at the time of conviction for these offences, being March 2005 (as opposed to the date on which the offences were committed), s 51A would apply, because the corporate respondent then would have a prior conviction.

24 The issue arises because in Rodney Morrison v Powercoal Pty Ltd [2002] NSWIRComm 298, the corporate respondent pleaded guilty to a charge under s 15(1) of the Occupational Health and Safety Act in respect of an incident which occurred on 1 July 1999. Schmidt J determined an appropriate penalty to be $100,000. This amount was discounted by 35 per cent, leaving a fine of $65,000 with a moiety to the prosecutor. An appeal against the inadequacy of the sentence was filed.

25 In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416, (Wright J President, Walton J Vice President and Boland J) upheld the appeal on 28 November 2003 quashing the penalty imposed by her Honour and in lieu thereof imposed a penalty of $155,000. As earlier mentioned, the incident that gave rise to the charges in the present matter occurred between September 1993 and 17 July 1998, that is, before the conviction in November 2003.

26 Senior counsel for the corporate respondent contended that the purpose of s 51A "is to punish more greatly in circumstances where a person has already been found guilty and ought be, in the (sic) legislature, more attentive to the very issue of safety of the employee or non employee". Senior counsel contended that s 51A was not applicable and that the maximum penalty in respect of each offence for the corporate respondent is $550,000.

27 Section 51A of the Act provides as follows: 51A Additional penalty for further offences against the Act (1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

28 The question raised here has been the subject of consideration by a number of single Members of the Court. However, their views are divided.

29 Schmidt J considered a similar submission to that put by the corporate respondent in this appeal in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245. In rejecting the submission Her Honour observed at [24] - [26]: [24] In my view, two considerations inevitably lead to the conclusion that it is record at the time of conviction, rather than at the time of commission of the offence, with which s 51A is concerned. As noted, inevitably there is a delay between the commission of an offence and conviction. In some cases, as here, the delay can be of a number of years duration. To construe s 51A(1) as being concerned with a defendant's record at a time when the offence in question was committed, requires the introductory words 'A Court that convicts a person of an offence (the 'current offence') against this Act may, if the person has previously been convicted of an offence …", to be read as providing "A Court that convicts a person of an offence (the 'current offence') against this Act may, if, at the time the offence was committed , the person has previously been convicted of an offence". [25] It has long been accepted that it is wrong to read into a statute words which are not there, in the absence of clear necessity: see for example Thompson v Gool & Co [1910] AC 409 at 420. Here, it is impossible to see such a necessity arising. The construction for which the parties contend, would plainly not be necessary, in order to give effect to the purpose of the section. Nor is it possible to regard the inclusion of the words "at the time the offence was committed" as being necessary to give effect to that purpose. It also cannot be concluded that the inclusion of those words are necessary, as involving a "reading down" of words of general description, as discussed, for example, by Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 687-688. [26] The second consideration is that the construction for which the parties contend, would appear give rise to consequences which do not accord with the intent of the section. The particular circumstances of this defendant illustrate this point, although obviously questions of construction cannot turn only upon the circumstances of a particular offence or defendant.

30 Her Honour then proceeded to discuss the particular circumstances of that case. The issues that arise for determination in this matter are identical to those that arose before her Honour. We note that Glynn J in Inspector William Keenan v Kyogle Council [2002] NSWIRComm 137 adopted the reasoning of Schmidt J in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service.

31 Boland J in WorkCover Authority v Howard and Sons Fireworks Spectaculars (No 2) [2001] NSWIRComm 116 also considered a similar submission determining at [27]:

[27] It seems to me that the words of s 51A are plain enough: that if a person is convicted of an offence under, say s 16(1) of the Act, the Court may, if the person has previously been convicted, impose as additional penalty 2,500 penalty units in the case of a corporation. Notwithstanding the fact that the incident that gave rise to the charge before the CIM was after the incident which is the subject of the present proceedings, the defendant stands previously convicted.

32 Marks J, in WorkCover Authority of New South Wales (Inspector Campbell) v Nelmac Pty Ltd [2000] NSWIRComm 228, took a contrary view. After observing that s 51A(3) refers to "the previous offence" and that the section also contained a reference to prior conviction, giving rise to some ambiguity, his Honour had recourse to the Second Reading Speech of the Honourable J W Shaw, then Attorney General and Minister for Industrial Relations when the WorkCover Legislation Amendment Bill was debated.

33 His Honour determined the matter at [35] - [37]:

[35] It seems clear that the intention as expressed by the Attorney-General was that s 51A would apply in the case of a second or further offence. It is the offence which triggers the application of the section and not the date of the conviction for that offence. [36] Accordingly, it seems to me that it is more appropriate to construe s 51A(1) as creating a trigger for a prior conviction of an offence which has occurred at a time prior to the current offence as referred to in that subsection. In adopting this approach I take into account that s 51A is contained within legislation which creates penalties punishable by the imposition of a fine and, in certain case, by imprisonment. In that s 51A has the effect of enlarging a maximum penalty otherwise applicable by a further 50%, its provisions ought in my opinion be construed strictly and any ambiguity should be resolved in favour of a defendant. [37] I am conscious that the approach to construction of s 51A which I favour is contrary to the submissions made by counsel for both the prosecution and the defendant. However neither counsel addressed the issue in any depth in written submissions and certainly neither counsel undertook any detailed analysis of the provisions of s 51A...

34 In the latter two decisions their Honours were not assisted by detailed arguments from counsel as to the proper construction of s 51A.

35 In moving the WorkCover Legislation Amendment Bill, which introduced s 51A, be read a second time, Attorney-General and Minister for Industrial Relations, the Honourable J W Shaw QC commented (Hansard, Legislative Council, 13 December 1995) at page 4778: In the case of second or further offences, the amendments will provide that the maximum penalty increases by half as much again - bringing the possible maximum fine for a corporation in serious cases to $750,000. This does not mean that courts should simply increase the amount of the employer's previous fine by half. Rather, the court should - whether dealing with a first or repeat offence - give due regard to the maximum penalty.

36 It is not necessary in these proceedings to refer in detail to the relevant approaches to issues of statutory construction. For present purposes, the principles are well settled and may be expressed as follows.

37 First, to paraphrase what was said in the recent Full Bench judgment of this Court in Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234 at [63], albeit in respect of another statute, the operation of the relevant provision is a question which, as any issue of construction, "may often be resolved by ascertaining the intention of the legislature from the express words of the instrument viewed in their context."

38 Second, the statutory provision must not be construed in isolation but in the context in which it appears as part of the whole instrument.

39 Third, courts are obliged by statutory injunction to prefer a construction which would promote the purpose of a statute to one which would not.

40 Fourth, the requirement to look to the purpose or object of the statute transcends the former obligation to adopt the traditional mischievous purpose rule in preference to the literal rule of construction because the earlier rule required the identification of an ambiguity or inconsistency before the Court could have regard to the purpose. Further, if the language of the statute or statutory provision is not ambiguous or uncertain, the Court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation that was obviously not intended: Mills v Meeking (1990) 169 CLR 214 at 223.

41 The context in which the relevant provision must be considered is as part of the process of interpretation itself, and not merely at some later stage when ambiguity might be thought to arise. Finally, the reference to context is to be taken in its wider sense to include such matters as the existing state of the law and the mischief, which, by reference to permissible extrinsic material, such as explanatory memoranda and Law Reform Reports, it might be discerned that the statute was intended to remedy.

42 In Fox v GIO [2002] 56 NSWLR 512; (2002) 120 IR 401 Walton J, Vice-President reviewed the principles of statutory interpretation. His Honour observed at [45] - [47]: [45] The interpretation of the Victorian equivalent of s15AA of the Acts Interpretation Act 1901 (Cth), s35(a) of the Interpretation of Legislation Act 1984 (Vic), was discussed by Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235 par 19: "[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 513. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes." [46] The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. [47] In Langan v Ceramiclab Pty Ltd (2000) 97 IR 80 the Full Bench of this Court referred to the need to interpret provisions in context at 84 - 85 [13]: "However, the submissions of the applicant earlier referred to are subject to another important consideration arising from the need to interpret the subject provisions in context. That is, the need, in appropriate cases, to interpret a word or phrase on the basis that its meaning is to be defined from its context. See, for example, Pearce and Geddes, Statutory Interpretation in Australia , (4th edition, 1996) at 99: '[4.14] Although usually stated separately, the noscitur a sociis rule reflects the same philosophy as the general approach of reading an Act as a whole. When writing, a person assumes that a reader will not read the document word by word but will look at whole phrases or sections. Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 put it thus: "Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.'''

See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ."

43 Further examples of courts' consideration of the approach to statutory construction are: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408; Mills v Meeking at 223; Police Association of NSW v Commissioner of Police (2002) 123 IR 301 at 312 - 317; Re Club Employees (State) Award and other Awards (2002) 122 IR 272; Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 379 at [104], 130 IR 378; Construction, Forestry, Mining and Energy Union (NSW) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]; Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award (2003) 129 IR 369 at [66].

44 We firstly turn to consider the construction of s 51A.

45 Section 51A(1) directs the attention of the court to whether "the person has previously been convicted of an offence against this Act." It is the prior conviction, rather than the prior occurrence of the offence that is referred to which activates s 51A(1). In that respect, the respondent's contentions are plainly correct. However, s 51A(3) refers to "the previous offence" and as to when that was committed, by reference to the commencement of the operation of the section.

46 We do not consider, however, that when viewed in terms of the context of the whole of the section that s 51A (3) should be construed as supporting the contentions of the appellant in this respect. If s 51A(3) is to be read as applying to a previous conviction with respect to a previous offence committed before the commencement of the section, it strains the language used in s 51A(3). If the legislature had intended such an approach to construction, it would have used language appropriate to such a meaning. It seems to us that s 51A(3) is intended to reflect a general approach that the section was intended to apply to previous offences, rather than to previous convictions.

47 Furthermore, it is important, in our view, that s 51A should be construed strictly, particularly as the section, as was observed by Marks J, is contained within legislation that creates penalties which include imprisonment.

48 Broadly speaking we prefer, therefore, the approach of Marks J, to the construction of the section. That approach is confirmed by a consideration of the proper approach to the 'second offences' when considered in other contexts in the general law.

49 A discussion of the principles in respect of second offences is to be found in The Laws of Australia, Title 12 Criminal Sentencing, Subtitle 3 Interpretation of Penalty Provisions, Chapter Four, Second Offences or Convictions (Law Book Company, 1993). The learned authors authoritatively state: Where a penalty provision has an increased penalty for a second or subsequent offence, it only applies if there has been a conviction for the first offence before commission of the subsequent offence.

50 The rule thus stated is, therefore, that where an offender is convicted of more than one charge on the same day, a court has no power to impose a sentence for a "second or subsequent offence" in respect of the second conviction. The same rule applies when the offender has on a previous occasion been convicted of a first offence after the commission of a second offence.

51 This interpretation has been adopted notwithstanding the use of different language in the penalty provisions. In O'Hara v Harrington [1962] Tas SR 165, the respondent had committed an offence of drunken driving and, before he was convicted, he committed and was sentenced for another offence of drunken driving. The sentence for the first offence committed did not attract a sentence 'on his second conviction for such an offence', as the Court held this to mean a conviction for an offence committed after conviction for the first offence. Burbury CJ explained the decision as follows: It may be thought to be anomalous that if a man commits the offence of drunken driving and then repeats the offence before being convicted of the first offence he escapes the increased statutory penalty in respect of his second offence. But Lord Coke, that great 17th Century judicial defender of the rights of the individual, said over three centuries ago that a man may not lawfully be subjected to an increased statutory penalty as for a second offence unless he has deliberately broken the law again after being convicted and receiving punishment for a first breach of it [Coke's Institutes, Part II, Vol 11, p 468, note 5 to the Statute of Westminster second]. The law has been taken to be so settled ever since. This three century old canon of construction of penal provisions of this kind is broadly based on principle and does not depend upon the precise language used in a statute. It ought not to be excluded unless the legislature has plainly said so.

52 Similar reasoning was applied in Samuels v McKenzie (1979) 23 SASR 595, where, the Court held "any previous offence . . . for which the offender has been convicted" to be an offence for which the defendant has been convicted before commission of the offence in question. In Rivera v Maher (1992) Tas R 228 [17 MVR 370], the Court held that a penalty for a subsequent offence which was stated to apply if a person 'has previously been convicted' of the offence did not apply where the second offence was committed before the conviction for the first offence.

53 We note a different construction was adopted in Stickland v Hassing (unrep, 24/2/1988, SC Tas Neasey J, 3 of 1988), where Neasey J held that a provision for a heavier penalty "where a person is convicted of an offence . . . having been previously been convicted" of a similar offence makes the heavier penalty applicable whether or not the second offence was committed after conviction for the first offence. However, this conclusion was reached by a process of construction of the relevant statutory provisions. Neasey J construed the words 'where a person is convicted', to make the time of conviction the appropriate time to consider if a previous conviction was in existence. Further, that case was distinguished in Rivera v Maher on the grounds that the opening words of the provision in Strickland v Hassing were not present in the provision raised in Rivera v Maher, indicating a legislative intent to adopt the long established meaning of previous prior conviction.

54 The Court of Criminal Appeal considered the approach to be taken in sentencing as to conduct of a defendant subsequent to a guilty finding in R v Boney (unreported, NSW Court of Criminal Appeal, Mahoney JA, Grove and Newman JJ 60342 of 1991, 22 July 1991), where Grove J, with whom Mahoney JA and Newman J agreed, stated at 4: ... His Honour observed that the applicant, who appeared for sentence in 1991, had been before courts in the period since the offences which occurred in 1987. His Honour noted these (which I shall describe as interim) and observed that other persons with whom he had to deal for offences arising out of the Brewarrina incident were in similar situations and commented: "What I have already said applies particularly to him as to his conduct since this event". The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR. 428 Kenyon LCJ said: "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant." The same approach was manifested in this Court in Reg v Hutchins (1957) 75 WN NSW page 75 where Street CJ said: "I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth." His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence.

55 In our view, these authorities confirm the correctness of the construction of the section earlier discussed by us. In our view the section is not enlivened in respect of a first offence which, due to delays in the disposal of the offence, becomes the second offence at the time when the Court considers sentencing. This may superficially give the impression that there may be two "first offences" in a given case, but we consider that the better view is that the approach we have preferred reflects the intention of the legislature to provide a higher maximum penalty where the offender has in a genuine sense offended on a subsequent occasion.

56 In this respect, we consider that the same conclusion is reached in relation to the proper construction of s 51A if a purposive approach is applied. The apparent purpose of s 51A is to deal with second or further offences (as noted by the then Attorney General in the Second Reading Speech) where the maximum penalty for a breach of, for example, s 15, in the case of the conviction of a corporation which has previously been convicted of an offence against the Act, would be $825,000. See Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29 at [44].

57 In further support of the construction advanced by the corporate respondent, senior counsel submitted the purpose of s 51A is to punish more greatly those persons who have offended after they have already been convicted of an offence. Senior counsel referred to the predecessor of the present s 51A, which was inserted into the Act by the Occupational Health and Safety (Workers Compensation) Amendment 1987. It was in the following terms: Repetition of certain offences - additional penalty

51A. (1) This section applies to proceedings for a second or subsequent offence against this Act which comprises a wilful repetition of the act or omission which constituted a previous offence. (2) If the defendant in proceedings to which this section applies is a natural person, a sentence of imprisonment for a period not exceeding 2 years may be imposed in addition to or in substitution for any other penalty which may be imposed under this Act. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

58 Senior counsel for the corporate respondent drew the Court's attention to the removal of the words "a second, or subsequent offence" and "a wilful repetition" from the subsequent amendment in 1995.

59 It was submitted that the changes made to s 51A by the 1995 amendment did not affect the opening words of the section, intending that the record, if a person had previously been convicted of an offence, does not operate at the time of the conviction, but at the time the offence has been committed. We agree with this submission.

60 We, therefore, find that in circumstances such as these, the defendant, who has committed a first offence, the hearing of which before the Court is delayed until after a later offence is dealt with to the point of conviction, on the proper construction of s 51A, would not attract the section's operation in relation to that offence.

61 The corporate respondent would, therefore, have no prior convictions under the Act. The personal respondent has no prior convictions under the Act.

62 The appellant also contended that s 51A applied to both the corporate and personal respondents, other than for the offence the Full Bench chooses to deal with first. In other words, it was contended that, where a defendant is charged (as a first offence) with two offences, the Court should treat conviction in one matter as a first offence and the second matter as a second offence under s 51A, even if the penalties are delivered in one sentencing judgment. We disagree.

63 The issue that arises in this regard is whether, where two offences are heard concurrently, conviction/sentence in both should result in one of the offences being treated as a second offence and attract s 51A.

64 In this case the appellant submitted that in convicting the personal respondent and the corporate respondent for multiple offences in the same judgment, the second mentioned conviction is a second and subsequent conviction for the purposes of s 51A.

65 The respondents submitted that the appellant's contention was wrong and such an approach was contrary to decisions of single Members of the Court. The respondents submitted in its outline of submissions, that s 51A(1)(a) of the Act should not apply.

66 The Court did not call upon senior counsel for the respondents in respect of this issue. We accept the respondents' contention as to the operation of s 51A in this respect.

67 The appellant's submission was that the Court, by necessity, deals with offences sequentially, rather than simultaneously, submitting that approaches generally adopted by single Members of the Commission, recording convictions simultaneously, were incorrect.

68 Boland J recently had occasion to consider s 51A of the Act in this respect. In Inspector Jones v Supercut Concrete Service Pty Ltd [2004] NSWIRComm 83, his Honour noted as follows at [37] - [39]: [37] Despite the difficulties associated with interpreting s 51A of the Act I do not consider it was the legislature's intention that where: · a defendant committed simultaneous offences under s 15(1) and s 16(1) in circumstances where the defendant had no previous convictions; · the offences arose out of the same factual matrix; · there was a substantial overlap between the failures charged in the two offences; · the two offences were effectively prosecuted as one;

that whichever of the two offences was first recorded as a conviction becomes a previous conviction for the purpose of s 51A.

[38] Mr Docking 's reliance on R v Tonks and Goss is, I think, misplaced. Whilst the question of totality will be dealt with in the body of any judgment and indicates a guilty verdict and conviction this Court's usual practice is to formally record a guilty verdict and conviction in the making of any orders and there is no need to search for some other basis as to whether or not there is a conviction. In order to avoid any doubt and to overcome Mr Docking 's contention, which I consider would lead to a most unjust outcome, I propose to record the convictions simultaneously.

[39] I consider that s 51A of the Act has no application to either of the offences in these proceedings and the maximum penalties in each case are $550,000.

69 A similar approach was adopted by Staff J in Inspector Wilkie v Greater Lithgow Skills Training Incorporated t/as Greater Lithgow Employment Agency [2004] NSWIRComm 166 at [37] where his Honour recorded convictions simultaneously and determined that s 51A had no application to a plea of guilty to two charges arising out of the same factual matrix. 70 We record our agreement with the approach adopted by Boland J in Supercut. That judgment demonstrates that the legislature did not intend to create a two-stage process as to sentencing. As was observed in Capral this could lead to the real risk of significant elements in the sentencing process being taken into account twice. We note that in Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56, a judgment of Haylen J delivered on 3 March 2003, his Honour agreed with the underlying rationale of the approach of Boland J in Supercut: see [74]-[75].

71 The New South Wales Court of Criminal Appeal considered a similar question in Commissioner of Taxation v Baffsky, (2001) 192 ALR 92. In that matter Backhouse DCJ, following an application by the appellant, submitted several questions of law to the Court of Criminal Appeal for determination pursuant to s 5B of the Criminal Appeal Act 1912. The relevant question was as follows: 4 (V) Did I err in law in determining that it was inexpedient to inflict any punishment on the respondent in respect of the second offence: (a) for the same reasons as in respect of the first offence; and/or (b) by failing to take into account the fact that it was a second offence."

72 Spigelman CJ, with whom Simpson J and Einfeld AJ agreed said at [105] - [108]: 105 The proceedings before Backhouse DCJ were convictions for two offences of failing to furnish an income tax return, when required pursuant to a taxation law, contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (C'th). The requirement was to furnish income tax returns for each of two years pursuant to a single notice issued on 4 April 2000 and to do so on the same day. 106 In her judgment her Honour said: "There are indeed two offences in the technical sense, but each failure resulted in an offence and both matters were included in an information and summons before the court ... ." 107 The Commissioner submitted that it was apparent from her Honour's reasons that she failed to take into account that one of the offences was a "second offence". Presumably the second charge on the information being the second of the two financial years with respect to which a return was not filed, is the "second offence". It was submitted that her Honour did not exercise her discretion separately with respect to that offence, taking into account the fact that it was a second offence. 108 In my opinion this takes an artificial approach to the hearing before her Honour. Her Honour's reference to the fact that there were two offences "in the technical sense", reflected the fact that they were both committed in the same constellation of circumstances which her Honour found to be relevant for purposes of exercising the discretion under s 19B. Each was, in fact, triggered by the respondent's failure to furnish a return on exactly the same day, that is, on or about 3 May 2000, as required by a single notice, issued to the Respondent with respect to two separate financial years. In these circumstances it was open to her Honour to consider the two offences together for purposes of exercising the s 19B discretion. I would answer Question 4(V): "No".

73 The corporate respondent has been found guilty of two s 15(1) contraventions of the Occupational Health and Safety Act as has the personal respondent under the deeming provisions of s 50 of the Act. The two charges relating to the personal respondent could have been brought as one under the provisions of s 49A. In respect of both respondents, each charge arose out of the same factual matrix over the same period and the charges were effectively prosecuted as one. The two offences should be considered together as, in our view, consistent with authority, an increased penalty for a second or subsequent offence only applies if there has been a conviction for the first offence before the commission of the subsequent offence.

74 In our view, each respondent for the purposes of sentencing in this matter, therefore, should not be treated as a "repeat offender". It follows that there is no previous conviction to trigger the operation of s 51A of the Occupational Health & Safety Act in respect of the corporate respondent or the personal respondent.

75 Before leaving this aspect of the judgment we wish to observe that it is regrettable that the Court was not taken to any of the authorities we have referred to in relation to the s 51A issues save for those of this Court.

76 We turn to consider the objective and subjective factors relevant to the offences committed by the corporate respondent and begin with a consideration of the criminal conduct in respect of which the corporate respondent was found guilty. The corporate respondent was the owner and operator of the mine and the employer of those employees who worked in 304 Panel on 15, 16 and 17 July 1998. Pursuant to s 15(1) of the Act the corporate respondent had a statutory obligation to ensure the health, safety and welfare at work of all its employees. This it failed to do on two counts, namely, it failed to provide safe systems of work in that it failed to provide or maintain an adequate system for assessing the safety of the roof in the vicinity of 304 Panel at 25 CT in the vicinity of 1, 2 and 3 headings and it failed to implement an adequate system of recording and notification to employees of roof problems and roof history. The failures led to employees working in 304 Panel being exposed to a risk to their health and safety that being the risk of a roof collapse. We agree, however, with Mr S Rothman SC, who appeared for the respondents, that the charges thereby established the parameters in which the objective seriousness of the offences should be considered by the Court.

77 The method of assessing the soundness of the mine's roof was one consistent with longstanding industry practice, that is, by visual inspection and sounding/vibration with a metal bar. This method was said to have been "the only known and accepted means" for testing the integrity of the roof. The corporate respondent had carried out geological surveys of the area constituting the roof but was unable to determine with certainty the nature of the materials present.

78 The method used for testing the roof had its limitations as explained at [125] of our earlier judgment; it failed to detect the weakness in the roof discovered after the roof collapse on 17 July 1998. There can be little criticism of the corporate respondent in using "the only known and accepted means" for testing the roof; it was done with appropriate caution, with constant visual inspections and regular testing with a metal bar as the work progressed and the roof appeared to be sound. But in circumstances where the geological survey indicated in the area of 304 Panel the potential for the nature of the composition of the roof to change from solid conglomerate to less stable non-conglomerate; where there were clear signs of "poor roof" indicating instability; and; where there was the prospect in a pillar stripping operation that a roof fall in the goaf area might run into the work area, the accepted means of testing the roof by visual inspection and sounding with a metal bar was inadequate in the context of a responsibility on the corporate respondent to ensure its employees' safety.

79 As we found in the earlier judgment at [127]-[128]: We consider there was an over reliance on sounding the roof as the means of assessing its competency to the extent that it detracted from the need for the appellant to take a more systematic and broader approach to the question of whether there was a risk of roof fall that might jeopardise the safety of the mine workers. 128 It is not open to an employer, in answer to a charge under s 15(1), to contend that it was unable to assess whether something was safe because there was no method or technology available to do so (subject, of course, to any available defences). Employees cannot be placed in a situation where the employer is unable to ensure, or make certain, or guarantee their safety. That is not to say that visual inspection and sounding with a metal bar cannot be used in testing the safety of a roof in an underground mine. As long as it is comprehended that in relying on these methods alone is not a guarantee of safety.

80 In the context of the s 53 defences the Full Bench said at [153]-[154]: As to the question of whether it was reasonably practicable to ensure the mine workers' safety, there was nothing impracticable in the respondent ordering mining to cease in the area that was the subject of the roof assessment charge until an adequate assessment of the safety of the roof had been carried out and we are satisfied such an assessment was reasonably practicable by the following means, namely: 1 The system of work should have required a comprehensive inspection and assessment of each area where work was carried out before second workings commenced.

2 The system of work should have required a risk assessment of each area where work was to be carried out when the method changed from pillar extraction to pillar stripping.

3 The system of work should have required that the mine officials' reports be analysed over more than one shift to determine whether a pattern of instability was emerging.

4 The system of work should have given priority to all indicia of roof instability and not overriding significance to sounding the roof and looking for stress on the timber props.

5 The system of work should have required that work cease in the event of the indicia of unstable roof conditions being present. There was no evidence as to the impracticability of just leaving the area, fencing it off and not working there at all. None of the above steps were impractical or unreasonable. There is nothing in terms of money, time and trouble that would have prevented these measures from being implemented.

154 Given the magnitude of the risk to employees of the roof falling in, the foregoing measures should, unquestionably, have been in place. There was clearly an over reliance on visual inspection and sounding, methods that were demonstrably inadequate. Had there been a comprehensive system of risk assessment and inspection in place where the risks associated with the roof were actively searched out and rigorously assessed, it would have become evident, as we have explained earlier in this judgment, that there was a risk of the roof falling in.

81 We should add this observation in relation to our findings at first instance: in the sentencing proceedings evidence was given by Mr Malcolm John Ives, a senior geologist with Centennial Coal Company Limited who at the time of the incident on 17 July 1998 was a senior geologist with the corporate defendant. Mr Ives had not previously given evidence in the proceedings. Mr Ives had prepared a map of the roof types in 7 North West Panel, which included 304 Panel, on 17 December 1996. Reference was made to the map in the sentencing proceedings. The map was in evidence at first instance and on appeal, although the coloured version, which showed quite plainly the distinction between the various types of roof, was not before the Full Bench during the hearing of the appeal. The map, it is to be noted, was not definitive of the roof types but represented Mr Ives' considered opinion as to what type of roof might be present.

82 The map showed quite starkly that 25 cut through, between 1 heading and 3 heading, was bisected by a shaded area showing what Mr Ives considered might be laminated sandstone (or non conglomerate) roof over 2 heading and 3 heading (green shaded area) and conglomerate roof over 1 heading. Despite the uncertainty of the geologist about the nature of the roof above 304 Panel, which was mapped by him as potentially being an area where the roof may have been relatively stable conglomerate material over 1 heading and less stable non conglomerate of 2 and 3 headings, there was no evidence that the corporate defendant took any particular precautions regarding this state of uncertainty about the composition of the roof over the area where miners were working on 15, 16 and 17 July 1998, beyond that which was described in our earlier judgment. Mr Ives' evidence confirms the heightened risk of working in 304 Panel and incidentally further reflects on the liability of the corporate respondent. It seems to us that if an experienced and senior geologist was not certain of the composition of the roof but had indicated that there might be two distinct types of roof in the area being mined - one stable and the other relatively unstable - it plainly called for precautions to be taken beyond merely sounding the roof and visual inspection, especially given "there were definite warning signs that the roof presented a risk to safety" (and given that those soundings were unlikely on the evidence to produce any better indicator of the risk beyond that identified by the geologist).

83 We accept on the evidence presented in these proceedings, however, the corporate respondent was generally a responsible employer with a high regard for the safety of its employees. Its occupational health and safety systems and procedures were designed to cope with what is an exceptionally dangerous industry. The existence of a system of work that evidences a defendant's concern with, and regard for, safety may mitigate the seriousness of an offence: see, for example, Department of Mineral Resources of NSW (McKensey) v Kembla Coal & v Coke (1999) 92 IR 8 at 25; Warman International Limited v WorkCover Authority (Inspector Riley) v Broken Hill Pty Co Ltd (1998) 83 IR 427 at 429; and WorkCover Authority (Inspector Penfold) v Fernz Construction Materials Ltd (2000) 100 IR 23 at 34.

84 In this case, however, the corporate respondent's failure to provide an adequate system for assessing the safety of the roof was a lapse on its part in an otherwise sound occupational health and safety regime at the mine.

85 The second charge was the recording and notification charge. The essence of the findings in respect of this charge was that there was a failure on the part of the corporate respondent to collect and collate, in a coherent fashion from the time of the first workings, information about the conditions of the roof and for that information to be consistently conveyed to employees as the work progressed. It was observed at [137] that individuals knew about the poor roof in 1 and 3 Heading but none of them, individually or collectively, drew any connection with the possibility that, combined with other signs of poor roof in the area being lifted between 1 and 3 Heading (roof fall, rock fall, flaky or dribbly roof, water cracks), the state of the roof constituted a potential danger of it falling in and, in doing so, extending outside the goaf area. It was considered at [142] that if coherent information regarding the state of the roof had been notified to employees: [I]t would have conveyed to these employees that they could not proceed on the assumption they were working in connection with the relative safety of a solid conglomerate roof and that if work was to proceed it should only be in the most careful manner. It would also have become evident to the corporate respondent that it needed to take steps to ensure that the risk to safety of the roof falling in did not impact on employees whilst they were working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998.

86 At [149] we stated: 149 In relation to the recording and notification system we do not consider the respondent has discharged the onus of proving that it was not reasonably practicable to provide such an adequate system. The expert evidence was that it was desirable to do so and we cannot see any obstacle at all to the respondent having done so both in relation to the first and second workings. It would have been a relatively simple matter to place on the working plans relating to the extraction process the information relating to the inferior roof in 1 and 3 Headings and to progressively update those plans as work progressed in the second workings. Further, it would have been a straightforward task of notifying employees on a regular and progressive basis of the information relating to the state of the roof. Had the corporate respondent done so we are satisfied the risk to safety would have been averted.

87 Again, the failure or omission on the corporate respondent's part to provide an adequate system of recording and notification to employees of roof problems and roof history was not of the nature of a deliberate or intentional disregard for safety. Indeed, the corporate respondent did have recording systems in place that met the requirements of the CMR Act but these were deficient to the extent we have described in our earlier judgment.

88 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence: Capral Aluminium Limited v WorkCover Authority of New South Wales at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [87].

89 Whilst we accept that the risk of the roof fall was not glaringly obvious, we did hold at [153] in the earlier judgment that the risk of the roof falling in was reasonably foreseeable by the corporate respondent. It may have been the case that the precise nature of the weakness in the roof was not known to the corporate respondent but as we observed at [115], "there were definite warning signs that the roof presented a risk to safety" and at [116]: The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety.

90 In Graham Gerard Coleman the Full Bench stated at [88]: 88 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: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting at 476.

91 In relation to the recording and notification charge, we earlier found at [149] that: It would have been a relatively simple matter to place on the working plans relating to the extraction process the information relating to the inferior roof in 1 and 3 Headings and to progressively update those plans as work progressed in the second workings. Further, it would have been a straightforward task of notifying employees on a regular and progressive basis of the information relating to the state of the roof. Had the corporate respondent done so we are satisfied the risk to safety would have been averted.

92 In relation to the assessment charge it was held at [153] that there was nothing impracticable in the corporate respondent ordering mining to cease in the area that was the subject of the roof assessment charge until an adequate assessment of the safety of the roof had been carried out. We were satisfied such an assessment was reasonably practicable by the means described in [153].

93 Another factor to be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred. In Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33] the Full Bench stated: 31 The incident that led to the prosecution of the respondent involved the death of an employee and, it would appear from the evidence, a narrow escape from at least serious injury by another employee. Under s 15 of the Occupational Health and Safety Act , however, death or serious injury arising out of an industrial accident will not necessarily attract a higher penalty than if no death or serious injury occurred. As the Full Court of the Industrial Court of New South Wales observed in Haynes v C I & D Manufacturing Pty Limited (1995) 60 IR 149 at 158-159: The general duties created by the OHS Act such as in ss 15 and 16 are clearly directed, we think, at obviating "risks" to safety in the workplace … 32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

33 Thus, 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 straightforward 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. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case.

94 Further, s 21A of the Crimes (Sentencing Procedure) Act provides: (2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … 95 The death of Mr Edwards was a tragic manifestation of the degree of seriousness of the risk to health and safety to which employees of the corporate respondent were subjected. But even absent that consideration, if the risk is that the roof of an underground mine might collapse whilst work is being carried out, it is difficult to imagine a more perilous situation in a workplace. There was, consequently, an uncompromising responsibility on the corporate respondent to take every possible precaution that was reasonably practicable to ensure any risk to health and safety did not materialise. The corporate respondent fell short in meeting that responsibility. As Boland J observed in Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 at [37] 37 One has to be careful about being judgmental in hindsight. But in the face of a statute that has been operating for many years and which imposes a strict liability on employers to ensure the safety of workers, and in circumstances where workers are continually working in dangerous and often unpredictable - even unknown - conditions, the very highest standards of safety must be observed.

96 We note in this respect, section 3A of the Crimes (Sentencing Procedure) Act provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

97 In Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515, Spigelman CJ made the following comments on the impact of s 3A [at 57-59]: 57. Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the "purposes of sentencing" which must now guide sentencing decisions constitute a change of pre-existing sentencing principle. 58. For example, "prior" case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate "purpose" and one concerned with protection of the community " from the offender ". 59. It may also be arguable that s3A(c) - making the offender "accountable" - introduces a new element into the sentencing task. The same may be true of the reference to "harm" to "the community" in s3A(g).

98 Whilst the Chief Justice expressed no view on the matters raised, he did refer at [60] to the "possibility that prior sentencing principle may need to be reviewed".

99 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 the High Court (Mason CJ, Brennan, Dawson and Toohey JJ stated: However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

100 We have adopted the approach in Veen (No 2) to the matters listed in s 3A of the Sentencing Procedure Act. We would, however, make particular reference to deterrence. In Capral Aluminium the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. There can be no issue here that it is appropriate to include in any penalty an element for general deterrence that is to deter others from committing similar offences. It cannot be said that in the coal mining industry offences under the Occupational Health and Safety Act are unknown in this jurisdiction. Boland J noted in Wambo Coal at [41]-[42]: 41 Since 2001 there have been 12 prosecutions in the Commission in Court Session involving 14 deaths in mines: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] NSWIRComm 130; Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298; Rodney Morrison v Tahmoor Coal Pty Ltd [2002] NSWIRComm 327; Rodney Dale Morrison v Coal Operations Australia Limited [2003] NSWIRComm 249; Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd [2003] NSWIRComm 292; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342; Rodney Morrison v Tecrete Industries Pty Ltd [2003] NSWIRComm 371; Rodney Morrison v Anglo Coal (Dartbrook Management Pty Ltd) [2003] NSWIRComm 397; Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440; Rodney Morrison v Waratah Engineering Pty Limited [2004] NSWIRComm 38; Rodney Morrison v Akula Pty Limited formerly known as RaiseBore Australia [2004] NSWIRComm 41; Inspector Morrison v Cumnock No.1 Colliery Pty Ltd [2004] NSWIRComm 151.

42 In 2001, the industry with the highest incidence of workplace injury was mining (45.4 injuries per 1,000 wage and salary earners compared to 15.1 injuries per 1,000 wage and salary earners for all industries): Report by General Purpose Standing Committee No. 1 of the Legislative Council entitled "Serious Injury and Death in the Workplace", May 2004. The need for general deterrence in the mining industry is, as the Full Bench observed in Capral, "undeniable".

101 There is plainly a need in this matter to impose a penalty at a level that will draw the attention of those operating in the mining industry to the necessity of engaging in mining practices that conform to all of the requirements of the Occupational Health and Safety Act, particularly the necessity to be pro-active in preventing roof collapse.

102 In relation to specific deterrence Mr Crawshaw SC, for the appellant, submitted that this was not a rare case where appropriate weight did not have to be given to specific deterrence.

103 Mr Rothman for the corporate respondent submitted: Subsequent to the accident the First [corporate] Respondent initiated a number of measures to minimise/eliminate the risks associated with roof collapse at Awaba. One of the primary measures was to introduce an entirely different system of extraction. See affidavit of Mr Myors at [32]. The extensive and comprehensive measures taken by the First Respondent after the incident together with its demonstrated commitment to safety support the contention that a low quantum, if any, of the penalty be included for specific deterrence.

104 In referring to specific deterrence, the Full Bench in Capral Aluminium stated at [77]: 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 105 This is not a case where a defendant had failed to acknowledge that its systems of work were defective and did nothing to remedy those defects. However, the corporate respondent in this case conducted a large enterprise in one of the State's more dangerous industries. In the normal course we would have considered some weight should have been given to the need for specific deterrence, notwithstanding the extensive steps taken by the corporate respondent to improve its approach to occupational health and safety as described in Mr Myors' affidavit. We note, however, that the corporate respondent is no longer an operational entity (its shares were sold to Centennial Coal Company Limited in August 2002), a matter not referred to by either party in the context of specific deterrence. We consider the appropriate course in the circumstances is that we do not include in any penalty an element for specific deterrence.

106 That brings us to a consideration of the subjective factors that may mitigate the seriousness of the offences committed by the corporate respondent. Section 21A(3)(e) and (f) of the Sentencing Procedure Act provide: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, …

107 We earlier found the corporate respondent had no prior convictions. Accordingly, it may be said the corporate respondent had a good record when considered in the context of the industry in which it operated and the size and scope of its operations. As at July 1998 the corporate defendant operated eight mines. Awaba Colliery had been operating since 1948. The corporate defendant may be regarded as a good 'industrial citizen' as that expression is used in judgments of this Court in assessing the character and record of a defendant in prosecutions under the Act: Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (1999) 95 IR 383 at 454.

108 Section 21A(3)(h) of the Sentencing Procedure Act provides: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise. …

109 The offender with which we are currently concerned was, of course, a corporation but we, nevertheless, consider that rehabilitation is a relevant issue. We have already referred to the steps taken by the corporate respondent following the offence and we regard them as commendable in seeking to improve the occupational health and safety systems and procedures of the company and to avoid the prospect of the risks associated with roof collapse re-occurring. We also accept that the corporate respondent demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour: WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at 135.

110 Section 21A(3)(i) of the Sentencing Procedure Act provides: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, …

111 As counsel for the corporate respondent submitted, corporations have been deemed to be able to demonstrate contrition in the same way as individuals: see WorkCover Authority of NSW (Inspector Belley) v Rail Infrastructure Corporation [2001] NSWIRComm 323; WorkCover Authority of NSW (Inspector Hannah) v Albury City Council (1999) 90 IR 397 at 403; WorkCover Authority of NSW (inspector Piggott) v Capral (1998) 82 IR 468 at 476-478; WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (1999) 95 IR 462 at 478; Ampol Ltd v Environment Protection Authority NSWCCA No 60139/1995, 26 October 1995, unreported, BC9501702, per Grove J with whom Dunford and Newman JJ agreed.

112 In WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57, Wright J, President made the following observations regarding contrition in the context of occupational health and safety offences: 35 It [the defendant] is also entitled to rely significantly upon its demonstrated contrition referred to in the evidence of Mr Chapman as to the assistance provided to the injured worker subsequent to the accident. Although some commentators have pointed out that it is impossible for a judge accurately to estimate the sincerity of remorse or contrition (Ashworth, Sentencing and Criminal Justice, London, 1994 at 130, as cited by Mack and Anleu, Pleading Guilty: Issues and Practices Australian Institute of Judicial Administration, 1995 at 161), experience in occupational health and safety matters indicates that in many cases it is possible for an employer charged under the Act to provide tangible confirmation of contrition by support and assistance rendered to injured employees or to the families of victims of fatal accidents (see, for example, Page v Walco Hoist Rentals Pty Ltd (No.2) at 43; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 at 29; and Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 at 17. That is the case here.

113 In his affidavit Mr Myors deposed that: Trauma counselling was made available to all employees at the Colliery. IPS Services provided specialised counsellors to the Colliery for 2 to 3 days following the incident and then on a needs basis as required. At the time of the incident, Powercoal immediately dispatched myself, the then Manager at Cooranbong Colliery, to personally inform the immediate family of the deceased. Unfortunately, Mrs Edwards was in transit and heard details on the car radio of an accident at Awaba Colliery. Although no names were released at this stage, Mrs Edwards was concerned since her husband worked at Awaba and drove straight to the site. At the site she was met by Company and employee representatives. Mr John McKendry represented Powercoal and offered condolences and assistance to the family during this tragic time. Mr Bernie McKinnon co-ordinated surface activities at the mine (media etc). Trauma counselling was immediately offered to the Edwards family by IPS Services, and extended for a further 12 months on a needs basis.

114 The steps taken by the corporate respondent in relation to Mr Edwards' family were undoubtedly appropriate but there was no evidence that it extended beyond what could have been reasonably expected of a responsible corporate employer.

115 Senior counsel for the appellant drew our attention to the decision of Cummins J in DPP v Esso Australia Pty Ltd [2001] VSC 263. At [40]-[48] Cummins J considered the question of whether the defendant had accepted responsibility for the "fatal and injurious events" that occurred on 25 September 1998 when an explosion occurred in a gas processing facility at Longford in Victoria and two employers were killed and eight seriously injured. The defendant was prosecuted under s 21(1) of the Occupational Health and Safety Act 1985 (Vic). At [47]-[48] his Honour stated: 47 Then towards the end of plea, after senior counsel rightly had reviewed Esso's otherwise commendable safety record, I asked the following (page 5970, line 2): "I think that leads to this, Mr Titshall. I have no doubt that the many and commendable facts that you have put before me are accurate and true as to your client, but the corollary of what you put to me is this. In relation to the rupture on 25 September and its antecedents, there is a mountain of evidence; a most distinguished former High Court judge with his co-Commissioner made clear and unequivocal findings, as stated in the Royal Commission Report; and a jury of 12 unanimously found proof beyond reasonable doubt of every charge laid against Esso. If Esso is the good corporate citizen you have stated it to be, why does it not accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that, Your Honour," and I replied, "Very well." 48 Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency.

116 Esso had expressed remorse for "the tragic loss of life and injury which occurred as a consequence of the rupture on 25 September 1998" but as it may be seen, the sentencing judge did not accept that expression of remorse as "practical and operational" and regarded it as "a serious deficiency."

117 In the instant case, Mr Myors in his affidavit stated: The company deeply regrets the pain this incident has caused Mr Edwards' family, friends and work colleagues and on behalf of Centennial, I express the deepest sympathy. Centennial is acutely aware of the impact such incidents have on family and friends and Barry's death has greatly affected all people in the company, from senior executives to workmates.

118 We do not doubt the sincerity of Mr Myors' expression of regret and sympathy. However, in cross examination Mr Myors was asked whether Powercoal and Centennial "accept responsibility for the events that occurred?" Mr Myors indicated he was not sure how to answer the question. In re-examination, the following exchange occurred: Q. Without going into the question of the technicalities of guilt or otherwise, what is the company's attitude to the responsibility for enforcing at the workplace, and in particular, the accident that occurred? A. I think these responsibilities are articulated in our safety plan and that is we strive for zero accidents and fatalities, and we take safety very seriously, and we continue to do all that we can to improve our safety systems.

119 Mr Myors did not answer the question directly. We can accept, however, that Mr Myors, may have been concerned about the implications of any answer to the question about assuming responsibility for the accident because of the prospect of further proceedings in the Court of Appeal (see Morrison v Powercoal Pty Ltd & Anor. (No. 2) [2005] NSWIRComm 6) and that this may have led to some confusion on his part in attempting to answer the question on this occasion. We, therefore, do not draw any adverse inferences from his answer. But we should make it clear that where a defendant has been found guilty of an offence under the Act yet declines to accept responsibility for the act or omission constituting the offence, especially where there has been serious injury or death, the Court will discount the value of any expression of contrition because we would regard it as a serious deficiency in the absence of any reasonable explanation.

120 Section 21A(3)(m) of the Sentencing Procedure Act provides: (3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (m) assistance by the offender to law enforcement authorities (as provided by section 23).

121 The evidence was that the corporate respondent offered cooperation and assistance to the investigating authority following the incident on 17 July 1998.

122 Senior counsel for the corporate respondent submitted that in determining an appropriate sentence we should have regard to the actions of Gregory Alan Gardner, a mine deputy, who was charged with an offence under s 19(a) of the Act in relation to the incident on 17 July 1998. Mr Gardner pleaded guilty to the charge, relevant particulars of which were: (xii) at the time of the fatal accident, the defendant was standing about one metre away from Edwards while Edwards was in the process of skimming coal off the last stook ("stook X"). Immediately before the fatal accident Edwards, with Gardiner directly behind him, had skimmed about 1.2 metres from stook X, thereby reducing stook X in size by an estimated 50% from what was specified in the General Rules for Pillar Stripping confirmed 20 May 1998;

(xiii) the majority of roof fall accidents in pillar recovery occur at intersections. The stability of an intersection during pillar recovery is assisted by the stook of coal left to separate it from the extraction void; (xiv) the defendant's failure to take reasonable care for the health and safety of persons at his place of work was the failure to prevent Edwards from skimming stook X;

(xv) as a result of the said failure, the other persons nominated in paragraph (x) above were placed at risk from falling roof. Mr Gardner was convicted and fined an amount of $1,275.00: Rodney Morrison v Gregory Alan Gardner [2003] NSWIRComm 440.

123 Counsel for the corporate respondent relied, in particular, on the decision of Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]: There can be no doubt, in my view, that in determining the culpability of a defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think, be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged.

124 We also note that in WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at [53] Walton J, Vice President stated: However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 433 - 437) and WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No.2) (2000) 99 IR 163 at [31].

125 Mr Gardner was charged under s 19(a) of the Act and whilst there are similarities in the factual matrix underpinning that charge with the charge against the corporate respondent, the key difference is that the charge in Mr Gardner's case relied on his failure to prevent Edwards from skimming stook X. There was no such reliance on the skimming of stook X in the charges against the corporate respondent. In those circumstances, we see little utility in having regard to the outcome in Mr Gardner's case. Besides, we note that the maximum penalty in that case was $3,300 and Mr Gardner was fined $1,275 or nearly 40 per cent of the maximum and we do not understand the corporate respondent to be supporting that level of penalty in this case.

126 The principle of totality arises for consideration in this case. The corporate respondent was charged with and found guilty of two offences under s 15(1), namely, the assessment charge and the recording and notification charge. The totality principle was recently considered by Full Benches of this Commission in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 and WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323. There is no utility in us undertaking any reconsideration of the principle because we consider the exhaustive analyses in the aforementioned cases are correct, except to identify what the principle stands for and that was stated succinctly in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 at [36]-[38] and quoted with approval in Abigroup at [76]: [I]n determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce [ v The Queen (1998) 194 CLR 610] and Mill [ v The Queen (1988) 166 CLR 59]. [37] We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. [38] In accordance with Pearce , we must first consider the appropriate penalty for each offence, assessed separately.

127 It remains to apply the principle in this case. In that respect, the two charges under s 15(1) against the corporate respondent both refer to: …a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there.

128 Both failures were in respect of the same employees and there was a common substratum of facts underpinning the criminality of the corporate respondent. However, whilst both failures concerned a failure to provide safe systems of work, one was a failure "to provide an adequate system for assessing the safety of the roof in the vicinity of 304 Panel at 25 CT in the vicinity of 1, 2 and 3 headings" and the other was a "failure and/or omission to implement an adequate system of recording and notification to employees of roof problems and roof history". Moreover, the charge in Matter No IRC 6372 of 2001 alleged the failure occurred between about December 1996 and 17 July 1998 whereas in matter No IRC 6376 of 2001 it was alleged the failure occurred between about 23 September 1993 and 17 July 1998. This reduces the commonality of the elements of the offences. We shall approach the application of the principle of totality accordingly.

129 In assessing penalty we have had regard to the principle of double jeopardy as it applies to Crown appeals: see Pearce v The Queen (1988) 194 CLR 610; Dowling v Bournelis & Bedrock Constructions (NSW) Pty Ltd [2003] NSWIRComm 88; WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex (2003) 127 IR 60. We consider an appropriate penalty in each case to be $150,000 as we consider the degree of criminality to be equal. Having regard, however, to the principle of totality and the degree of overlap between the elements and ingredients of the two offences, we determine the overall penalty to be $200,000. We consider the penalties should be appointed equally for each charge as follows: 1 In Matter No IRC 6372 of 2001 the corporate respondent is fined an amount of $100,000. 2 In Matter No IRC 6376 of 2001 the corporate respondent is fined an amount of $100,000.

130 Senior counsel for the personal respondent submitted that the Court should apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act to his client. Section 10 provides as follows: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

131 The application of s 10 was recently considered at length by a Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259. The Full Bench stated at [57]: [I]t is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s10 of the Crimes (Sentencing Procedure) Act . …Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 58 We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Limited at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal , the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act . Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act , in stark contrast to the matter presently before us where there is a total absence of such reasoning.

132 It is abundantly clear, therefore, that it will only be in rare situations in which s 10 will be available to a defendant under the Act and that if it is to be applied "cogent reasons must … be provided by the defendant for such exercise and also by the judge acceding to that submission."

133 In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348, in which Walton J, Vice President determined to apply s 10, his Honour referred to the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38] and [39] where the President considered the construction of s 50 of the Occupational Health and Safety Act: 178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]: Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.

179 His Honour also made some observations relevant to the assessment of culpability in the light of a prosecution arising in consequence of the operation of s50 of the Act as follows (at [39]): In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant. …

134 Walton J then proceeded in Berrima Coal and Coke to consider the culpability of the personal respondent who was in a very similar position to Mr Foster, being a mine manager with duties and responsibilities under the Coal Mines Regulation Act 1982. Taking the same approach in this case, we also consider the culpability of the personal respondent was less than the corporate respondent. Mr Foster could not, by any means, be considered the alter ego of the corporate respondent.

135 As we found in our earlier judgment: 174 Pursuant to s 37 of the CMR Act Mr Foster, as mine manager, had full charge and control of all employees at the mine, and all operations at the mine. His duties and functions included the requirement to enforce the observance by all mine employees of the CMR Act, regulations, rules and any schemes and any directions or conditions of exemptions or approvals given under the relevant legislation. Further, pursuant to s 37(2)(c)(ii) of the CMR Act the manager of a mine shall ensure the roof and sides or working places and roadways in the mine are adequately supported where necessary for safety.

175 Finally, in this respect there was evidence that Mr Foster's position responsibilities within the corporate respondent included developing and implementing a safety management plan for Awaba Colliery in accordance with the company's policies; controlling costs in accordance with the company's Business Plan's targets; managing mine planning and production to achieve Business Plan production levels; overseeing the mine's activities for environmental purposes and community expectations; producing quality coal products which meet customers' requirements; and, identifying and implementing workplace reforms which lead to more flexible and efficient operations.

136 These considerations need to be judged against a number of countervailing facts. First, the opportunity for Mr Foster to became completely familiar with the mine and its operations was limited. Mr Foster did not commence as mine manager until March 1998. The previous manager first briefed him at the mine on 26 March 1998. Consequently, those elements of the charges that refer to periods and/or events prior to March 1998 cannot apply in Mr Foster's case. Second, in relation to the assessment charge, whilst Mr Foster carried out underground inspections he noticed nothing untoward in respect of the state of the roof. He deposed in his affidavit: 57 Prior to pillar stripping commencing in 304 Panel, the first part of this Panel to be extracted was inspected by the Undermanager, Mr Cull. I also inspected this area on 9 July 1998. 58 I was informed by the Undermanager after his inspection that the sequence needed to be changed and pillar one (1) not extracted due to concerns about the poor roof in the roadway adjacent to this pillar. This was discussed with the District Inspector John Beatty on 16 July 1998 and he was quite happy for this minor change in the procedure to occur. 59 My inspection of the face cut-through where the pillar stripping was going to be carried out indicated that the roof was well supported and that there was nothing that would raise any safety concerns with the pillar stripping approach to be carried out. There was nothing to indicate to me at the time the risk posed by the presence of the geological features that created an arch back over 25 cut-through. 60 The pillar stripping method that was carried out in 304 Panel was the same pillar stripping method that was carried out in 7 Northwest Panel (the previous Panel). I had not considered it necessary to perform a risk assessment as the method of mining had not changed from 7 Northwest Panel. This mining method had been introduced prior to my commencement as Mine Manager and was considered safe.

137 Thirdly, Mr Foster, conscientiously and diligently attended to all of his safety responsibilities in the three and a half months prior to the incident including consultation with Professor Galvin who reviewed the pillar stripping layout for 304 Panel on 3 April 1998 at Mr Foster's request and consultation with Mr Beatty the District Inspector. Further, Mr Foster deposed in his affidavit: 48 The method of partial pillar extraction was already in place prior to my commencement at the Colliery. When I commenced as Mine Manager I satisfied myself as to the safety of the system of extraction being used. I did this by observations and discussions with the previous Manager and the Undermanager. 49 The total pillar extraction method had been utilised at the Colliery for many years, but had been changed to a partial pillar extraction system prior to my commencement as Mine Manager. I understood that the partial pillar extraction method was introduced to minimise the risk to the safety of the miners from wind blasts due to large areas of the roof not falling in total pillar extraction in 5 East Panel. 50 I had previous experience with total pillar extraction methods at Munmorah Colliery, where I had worked for 7 years previously. Partial pillar extraction is a variation of total pillar extraction. I would regard partial pillar extraction as generally a safer system than total pillar extraction which essentially relies on the total collapse of the roof for the future stability of the surface land. 51 On 16 July 1998 District Inspector Mr John Beatty attended the Colliery to discuss the partial pillar extraction approval alterations. We discussed which alterations we could make to the partial pillar extraction sequence without having to formally seek the approval of the DMR. The two changes we intended to make, involved: a) not mining sequence one (1) and b) altering the sequence so that sequence four (4) and five (5) would be mined before sequence two (2) and three (3). 52 Mr Beatty gave his verbal agreement to these alterations. I informed Mr Beatty that an inspection of the roof area of the roadway adjacent to sequence one, by the Undermanager Mr Cull had identified it as having poor roof and was no longer intended to be mined. 53 From observations of the partial pillar extraction system used at Awaba Colliery, it appeared to me to be a very safe system. The breaker props in place appeared to be doing their intended job, up until the time of the incident to Mr Edwards. 54 In my discussions with the employees involved in the partial pillar extraction system prior to the incident, they had indicated to me that they believed that it was a safer system than the previous system of total pillar extraction. 55 In conjunction with the Undermanager and the Mine Surveyor, I reviewed the roof support rules, the break-away rules and the pillar extraction rules for 7 Northwest Panel and prepared rules for mining 304 Panel. As part of this review process a sequence for the partial pillar extraction was developed and these plans and rules were all submitted to the District Inspector on 18 May 1998. To the best of my knowledge the Partial Pillar Extraction method being carried out in 7 Northwest Panel was satisfactory and the same method was to be continued in 304 Panel. 56 At all times prior to the incident I believed at the time of the incident that the intended method of extraction and the support provided by Stook 'X' was adequate to ensure the safety of the crew.

138 Fifthly, in respect of the reporting and notification charge, Mr Foster deposed that there was nothing in the reporting system in place before the accident that alerted him to a risk arising from the instability of the roof. The personal respondent deposed: 62 Part of an Undermanager's duties was to read all of the statutory mining inspection reports prepared by Deputies based on the mining condition of each shift. To the best of my knowledge this was being carried out by Mr Cull every day. 63 The briefing that Mr Cull gave to me on the afternoon on 16 July 1998 included the mining plan that was to be implemented the following day when he was on annual leave. I would have expected to have been informed of any instability occurring in the 304 Panel pillar stripping area being mined. Mr Cull did not inform me of any instability in the area, or any concern in that regard. 64 When I read the Deputies' statutory reports on the morning of 17 July 1998 nothing contained in those reports raised any safety concerns for the pillar stripping operation in 304 Panel. In particular, no concerns were raised about the instability of the roof. See reports for 15 and 16 July 1998, marked as Exhibits 35, 36, 37, 40, 41, 48 and 50. 65 The CMRA required that any unsafe condition detected was reported immediately to the Deputy, who would make an assessment of the risk. The Deputy had power to stop work and ensure that steps were taken in that area to make the area safe. The Support Rules for the Panel also required that any additional support over and above that provided by the Support Rules could be put in place if deemed necessary by either the workers or the Deputy.

139 Sixthly, we accept the submissions of senior counsel for the personal respondent that Mr Foster was not involved in the critical planning stages where decisions were made about assessment procedure in relation to mining conditions and the process of recording and notification of conditions in the mine.

140 We consider that, in the circumstances, it would be quite artificial and wrong to arrive at a finding that Mr Foster should carry the same weight of culpability as the corporate respondent in terms of the objective seriousness of the offences. Given Mr Foster's short duration as manager, and the size and nature of the task of coming to terms with the operations of the mine and the planning and processes that had been put in place prior to him taking up his role as manager, he necessarily had to rely to a significant extent on the judgment and advice of others. Moreover, it is readily apparent that Mr Foster had a strong commitment to occupational health and safety and afforded it a high priority in carrying out his responsibilities in the short period between March 1998 and 17 July when the incident occurred.

141 Mr Foster had an excellent record as a mining engineer and mine manager. He has no previous convictions under the occupational health and safety legislation. Since the charges were brought against him he has not been prepared to take a statutory position within the coal industry. He is a man of good character, as the references provided attest, and has been involved in community work associated with his swimming club, scouts and his children's school.

142 Mr Foster's wife gave evidence about the effects of the incident on her husband and her family. She deposed that: As a result of this accident and the court case, Peter does not ever want to be a mine manager again.

Peter is deeply affected by the prospect of a criminal conviction being imposed as a result of this accident. He is an upright and conscientious person both in his personal life and his business life.

We have also suffered as a family due to the loss of Peter's career and income.

We have suffered emotionally as a family over the past 6 years and our lives will never be the same again.

143 We consider, on balance, that the "extraordinary and highly exceptional circumstances" referred to by Walton J in Berrima Coal and Coke do exist in the case of the personal respondent to warrant the exercise of the Court's discretion pursuant to s10 of Crimes (Sentencing Procedure) Act 1999. In making this determination in respect of the personal respondent we have some reservations because of the role and responsibilities of the personal respondent for the operation of the mine, particularly in respect of safety, and we are concerned to avoid any perception that persons in a similar role as Mr Foster, whether it be coalmining or some other industry, can escape penalty on the basis that they were not aware of a risk. That is not the basis upon which we have decided to apply s 10 in this case. It will be a matter of considering all of the circumstances relating to the offence and the offender and, in particular, those factors referred to in s 10(3) of the Sentencing Procedure Act. In that respect, we have found the personal respondent to be of good character with no adverse antecedents. The offence cannot be regarded as trivial but we consider, for the reasons given, there are extenuating circumstances in which the offence was committed.

144 Whilst we have found that the offence is proven against the personal respondent, we do not propose to proceed to conviction and we shall make an order directing that the charge against the Mr Foster be dismissed.

145 There were a number of issues raised by the parties regarding costs in their written submissions and during argument. In summary, the issues were first, whether the notice of appeal covered an order for costs; secondly, whether the Court had the power to make a costs order; thirdly, the manner in which the Court should exercise its discretion to award costs if the Court was empowered to make a costs order; and lastly, the form of any costs order if an order was to be made.

146 We shall deal with each of these issues in turn.

147 The respondents argued that the appeal was against the decision of Peterson J and that this decision did not include the order for costs. Accordingly, the respondent argued the notice of appeal did not relate to an appeal of the costs order made at first instance. The appellant argued that the decision of Peterson J, the subject of the appeal, included the order for costs and, in the alternative, the appellant had adequately outlined that it would seek a costs order in respect of the costs of the appellant at first instance and on appeal in its written submissions and during argument. Further, to the extent the notice of appeal did not refer to an appeal of the costs order, senior counsel for the appellant sought leave to allow an amendment to the notice of appeal under s 170 of the Industrial Relations Act.

148 We consider that this issue was resolved in the course of the hearing and that the respondent did not ultimately press this point as an objection to a costs order. Nevertheless, to the extent it remains an issue we grant leave to the appellant to amend their notice of appeal to include specific reference to an appeal of the costs order made at first instance and to seek a costs order in respect of the appeal.

149 The appellant submitted that the Court had power to make a costs order under the general costs provisions in s 181(1) and s (4)(b) of the Industrial Relations Act. It was submitted that ordinary tenets of statutory construction should be adopted as appropriate to the issue of whether s 181 applies to appeals under s 197A and that the language of s 197A in the context of Parts 5 - 7 of Ch 4 of the Industrial Relations Act does not disclose an intention to exclude the section from the operation of other relevant provisions of those Parts.

150 The respondents submitted that s 197A of the Industrial Relations Act does not make any provision for costs and, importantly for the present purposes, s 197A does not import the provisions of s 181 of the Industrial Relations Act such that the Court does not have the power to order costs in respect of an appeal under s 197A. The respondents further submitted that s 197A is an extensive provision and relates only to an appeal of a decision to acquit and not to, say, a costs order made at the same time.

151 We consider that the Court has the power to award costs in respect of appeals under s 197A of the Industrial Relations Act for the following reasons.

152 We agree with both the appellant and respondents that the ordinary tenets of statutory construction should apply in interpreting s 197A. The Full Bench considered an analogous issue in Workcover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (No 1) (2002) 115 IR 59. In that case the Full Bench considered whether leave to appeal is required in appeals under s 197A. After referring with approval to the approach of the Full Bench in Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432, the Full Bench concluded as follows: Section 197A, as do s 196 and s 197, provides an avenue of appeal in respect of occupational health and safety prosecutions, although the two last-mentioned sections also provide appeal rights in a broader range of proceedings. Section 197A, like s 197, is to be contrasted with s 196 which, although all three provisions are found in Pt 7 of Ch 4, expressly excludes the operation of ss 188 and 191. Although the terms of s 197A(6) specifically refer to and apply s 191 but do not likewise specifically refer to or apply s 188, we do not consider on balance that that, of itself, results in a different situation as between ss 197 and 197A as to leave. Therefore, prima face , appeals under s 197A are governed by the ordinary or general provisions as to appeals under Pt 7 of Ch 4, other than s 196, including the requirement in s 188 as to leave. If the leave requirement in s 188 were not to apply to appeals pursuant to s 197A it would have been open to the legislature to expressly exclude its operation as has occurred in s 197A(9) which specifically provides the "section has effect despite anything to the contrary in section 196 or 197".

153 We consider that this reasoning applies equally to s 181 found in Part 5 of Ch 4 and that it would have been open to the legislature to expressly exclude the operation of s 181 in s 197A if that was the intention. 154 Counsel for the appellant, in their written submission on costs, also contrasted the terms of s 197A with s 17 of the Criminal Appeal Act 1912 (CA Act) observing that the legislature did not include any provision regarding costs in s 197A whereas s 17 of the CA Act expressly limited the right to costs orders for appeals under that Act. We agree that this supports the proposition that it was open to the legislature to deal with costs in s 197A if the general position was not to apply.

155 Counsel for the appellant, in their written submission on costs, also referred us to the decision of the Full Bench in Workcover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459 (Lucon) in which the Full Bench observed: The legal basis for such orders is that costs in relation to appeals and references under s 196 are not dealt with under the Criminal Appeal Act but, because of the terms of s 196(4), are dealt with in accordance with the normal costs provisions applicable to this Court under, for example, s 181, of the Industrial Relations Act .

156 Again, we consider that this supports our conclusion that s 181 applies to appeals under s 197A of the Industrial Relations Act, just as the Full Bench determined in Lucon that s 181 applies to appeals under s 196.

157 We note finally that, whilst we agree with counsel for the respondents that s 197A is an extensive provision, we do not consider that its operation should be limited to the actual decision to acquit. Such a construction places an inappropriately narrow interpretation on the provisions of ss 197A(1) and (7)(b).

158 Given our conclusion, it is unnecessary to consider the further submissions of the parties as to s 253 of the Criminal Procedure Act and s 14 of the Summary Jurisdiction Act.

159 The appellant submitted that, whilst costs are a matter of discretion for the Court, the general rule is that, if an appellant who is unsuccessful at first instance is successful on appeal the appellant is entitled to the costs of the trial at first instance and the costs on appeal (citing Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 271 per Mahoney J). The appellant also submitted that in a successful prosecution costs may be awarded to the prosecutor on the basis that "costs will follow the event" (citing O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 at 198 per Walton J, Vice-President. Counsel for the appellant further submitted that there were no circumstances that should disentitle the appellant from the benefit of the statutory costs discretion being exercised in their favour in these criminal proceedings.

160 The respondents submitted that the totality of the circumstances of the matter did not warrant the awarding of costs on appeal or of the trial below. It was submitted that given the conduct of the trial at first instance, the matters raised and the dismissal of the charges against the first respondent (and the result being dismissal of charges against the second respondent), the respondents did not have an alternative other than to resist the appeal. Counsel for the respondents cited dicta in Workcover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 101 IR 92 in support of this submission.

161 We do not consider, however, that Profab represents an analogous situation, whether at first instance or on appeal. The distinguishing feature in Profab was that the subject of the appeal, namely the s 556A order, was brought about by the actions of the trial judge and not the contentions advanced by the respondent in seeking such an order. The present case does not involve such circumstances in that the determinations by the trial judge were entirely consistent with the respondent's arguments and submissions.

162 We also consider that there were no disentitling factors on the part of the appellant in their conduct of the appeal or at first instance. The notion that the respondents had no alternative than to resort to appeal is unsustainable. The respondents are in no special position as to costs due to this matter being a prosecution appeal. The legislature has provided for such appeals and the respondents will make assessments as to their position in the light of any appeal brought under such provisions. Accordingly, we do not intend to exercise our statutory discretion to vary the general position that an award for costs should follow the event (see Lucon).

163 Senior Counsel for the respondents argued that if we were to make a decision in this matter, the order should only relate to the costs of the proceedings at first instance or the costs of the appeal, but not both. Again, we are not persuaded by this argument and consider it contrary to principle in that the respondent has advanced no factors warranting a departure from the ordinary approach in such matters. We shall make an order relating to the costs of the appeal and the costs of the proceedings at first instance.

164 Two issues were raised in relation to the actual cost orders. The first was whether an order should be made against both respondents or the corporate respondent only. Counsel for the respondents made a number of submissions in this regard, and, in particular, submitted that no order should be made against the personal respondent as the corporation was able to meet any costs order made and the personal respondent was not the alter ego of the corporation. The appellant did not challenge these submissions although asked the court to consider whether the corporation should give an undertaking to pay any costs order.

165 We consider that it is appropriate to make a costs order against the corporate respondent only having regard to our decision to dismiss the charge against the personal respondent under s 10 of the Sentencing Procedure Act and the fact that, in all probability, the corporate respondent, as employer, would be liable to indemnify the personal respondent for any costs order against the personal respondent in any event. Further, we do not consider a separate undertaking by the corporate respondent is necessary and are satisfied that the Court's order against the corporation will be effective in creating an obligation to pay.

166 The second issue raised relates to the form of the order itself. The appellant, in their written submission, sought an order in terms of: "the costs of the appellant ... as agreed, or, in the absence of agreement, in a specified sum as determined by the Court."

167 The appellant submitted that any part of a costs order that includes "costs as assessed" may be unenforceable and referred to some recent cases in which the Court had made similar costs orders under s 181 of the Industrial Relations Act, including Workcover Authority of New South Wales (Inspector Vierow) v Ridge Consolidated Pty Ltd (No 3) (2002) 121 IR 142.

168 The respondents did not make any submissions regarding this issue.

169 Having considered the submissions of the appellant on this issue and having regard to the fact that the corporate respondent did not object to this form of order, we do not consider it necessary to fully examine this issue. Accordingly, we shall make an order in the form sought by the appellant.

170 We make the following orders: Matter No IRC 6372 of 2001 1 The offence is proven and a verdict of guilty is entered accordingly. 2 Powercoal Pty Ltd is convicted of the offence as charged. 3 Powercoal Pty Ltd is fined an amount of $100,000 with a moiety thereof to the appellant. Matter No IRC 6376 of 2001 4 The offence is proven and a verdict of guilty is entered accordingly. 5 Powercoal Pty Ltd is convicted of the offence as charged. 6 Powercoal Pty Ltd is fined an amount of $100,000 with a moiety thereof to the appellant. Matter No IRC 6375 of 2001 7 Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, the Court does not proceed to conviction of Peter Lamont Foster and dismisses the charge against him. Matter No IRC 6377 of 2001

8 Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, the Court does not proceed to conviction of Peter Lamont Foster and dismisses the charge against him.

Costs 9 The appeal is upheld as to Peterson J's orders as to costs and the previous costs order is set aside.

10 The corporate respondent shall pay the appellant's costs of the proceedings at first instance as agreed, or, in the absence of agreement, as determined by the Court.

11 The corporate respondent shall pay the appellant's costs of the appeal as agreed, or, in the absence of agreement, as determined by the Court.

12 There shall be no order of costs against the personal respondent.

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