Narayan v Inspector Dave Chamings

Appeal - Occupational health and safety - Appeal from single member of Industrial Court - Employee suffered serious injury from log splitting machine - Guilty plea by personal appellant and corporate appellant - Failure to ensure plant was safe - Failure to provide necessary supervision - Whether penalties manifestly excessive - Consideration of objective and subjective factors - Appeals dismissed - Determinations at first instance confirmed CATCHWORDS: Occupational health and safety - Appeal from single member of Industrial Court - Employee suffered serious injury from log splitting machine - Guilty plea by personal appellant and corporate appellant - Failure to ensure plant was safe - Failure to provide necessary supervision - Whether penalties manifestly excessive - Consideration of objective and subjective factors - Appeals dismissed - Determinations at first instance confirmed

Criminal Appeal Act 1912 s 5AA LEGISLATION CITED: Fines Act 1996 s 6 Industrial Relations Act 1996 s 196 Occupational Health and Safety Act 2000 ss 8(1), 26

Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Inspector Dave Chamings v Shiu Narayan and Mahabir Holdings Pty Ltd [2007] NSWIRComm 106 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Markarian v The Queen (2005) 79 ALJR 1048 CASES CITED: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 Newcastle Wallsend Coal Company Pty Ltd v McMartin (2006) 159 IR 121 R v Trevenna (2004) 149 A Crim R 505 WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80

APPELLANTS Mr R Reitano of counsel Solicitor: Mr P Macken Leigh Virtue & Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms P E McDonald of counsel Solicitor: Ms J Healey DLA Philips Fox

Application by Shiu Narayan to appeal from a judgment and orders of Justice Haylen given on 7 May 2007 in Matter No IRC 2504 of 2006

Application by Mahabir Holdings Pty Ltd to appeal from a judgment and orders of Justice Haylen given on 7 May 2007 in Matter No IRC 2505 of 2006

1 Shiu Narayan was a director and person concerned in the management of Mahabir Holdings Pty Ltd. Through his business, Mr Narayan provided arborist services to the Rookwood Necropolis Cemetery. On 21 June 2004 an employee of Mahabir Holdings, Ashley Pettersen, was seriously injured whilst operating a Superaxe block splitting machine to split blocks of wood. The injury resulted in Mr Pettersen's right hand being partially severed at the wrist. It was later surgically reattached. 2 Mahabir Holdings was subsequently prosecuted for an alleged breach of s 8(1) of the Occupational Health and Safety Act 2000. Mr Narayan was also prosecuted for breach of that section of the Act by operation of s 26. The defendants both entered pleas of guilty. In Inspector Dave Chamings v Shiu Narayan and Mahabir Holdings Pty Ltd [2007] NSWIRComm 106, Haylen J found the defendants guilty and imposed a penalty of $95,000 on Mahabir Holdings and $8,500 on Mr Narayan. 3 Mahabir Holdings and Mr Narayan ('the appellants') have appealed his Honour's decision and orders pursuant to s 5AA of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996 on the ground that the fines imposed were manifestly excessive. The appeal is an appeal in the strict sense: see Newcastle Wallsend Coal Company Pty Ltd v McMartin (2006) 159 IR 121 at [35] and the cases referred therein. First instance decision

4 Haylen J referred to the fact that the amended particulars of both charges were identical and alleged as follows: 1. The company failed to ensure that plant, in particular the machine provided for use by the company's employees at work was safe and without risk to health in that the company failed to ensure that there were adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated. 2. The company failed to provide such supervision as may be necessary to ensure the employees' health and safety at work. 5 Mr Pettersen was 24 years of age at the time of the incident. Mahabir Holdings had employed him for three years. Mr Narayan was Mr Pettersen's supervisor on the day of the incident. His Honour noted that the incident appeared to have occurred when Mr Pettersen commenced to operate the machine for the purposes of demonstrating its operation to the relatively newly employed labourers. Further, that it was agreed that apparently during this task Mr Pettersen appeared to be distracted, and as he leant forward on the knee control of the machine, the blade stroked and came into contact with his right arm. He was taken to hospital and had not returned to work. 6 Haylen J noted it was agreed that: · apart from using hands to locate the block underneath the cutting blade of the machine, it was not necessary for the operator to use his or her hands to operate the machine during the cutting process, · there were no adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated, · Mr Pettersen had been provided with training in the operation of the machine in about mid-March 2002. That training consisted of a demonstration of the operation of the machine and being provided with a copy of the operator's manual provided by the manufacturer of the machine. 7 The operator's manual, under the heading "SAFETY" stated: BE CAREFUL. TREAT THIS MACHINE WITH CARE. IT CAN BE DANGEROUS.

A number of the warnings underneath included these warnings: Always keep your hands on side of the block, NEVER ON THE TOP. … NEVER allow yourself to be distracted from the operation of the machine. If distraction occurs, stop and deal with the distraction. DO NOT CONTINUE OPERATING. 8 His Honour referred to a more recent operator's manual that appeared to have been available during 2004 and after the incident. In that document under the heading "Operator Training", while again referring to keeping hands on the side and never on top, the manual contained this advice: While holding leg control sideways, push leg control forward to move axe down and split the block. 9 At [12] Haylen J referred to some manufacturer's brochures in evidence. The brochures contained this claim: Adjustable knee control gives easy, efficient, hands free operation.

His Honour noted, however, the brochures in which that claim was made carried photos of a person standing in front of the splitting arm, but with both hands on the timber block on either side of that block and "certainly not on top of the block." 10 At [13]-[14] Haylen J referred to an alert issued by Work Safe Victoria in November 1999 regarding crush injuries arising from the use of log splitting machines: That alert indicated that workers had received serious hand injuries while operating log splitters, and that they seemed to have occurred when operators were trying to free a log stuck on the blade of the machine. The machine had then been accidentally operated, crushing the worker's fingers between the log and the machine table. The alert stated that the manufacturer of the Superaxe, Whitlands Engineering, had developed a modification that included a double interaction to interlock the blade control, minimising the risk of unintended operation. [14] A letter to Mr Narayan of September 2004 from Advance Arbor Services indicated that Advance Arbor Services had purchased a Superaxe wood splitter from Whitlands Engineering in 1997, but at no time since purchasing that unit had that company received any communication from Whitlands regarding modifications or alterations being required for the unit. 11 In referring to the evidence given by Mr Narayan, his Honour noted: · Mr Narayan was 52 years of age and had been providing arborist services for 23 years employing a number of people up to the position where, on the date of his affidavit the company employed approximately eleven people. · Mr Narayan had completed a number of study and training courses including training in occupational health and safety. He had taken particular interest in all aspects of the tree cutting industry, and in particular, occupational health and safety in that industry. · Mr Narayan had been a member of the Tree Contractors Association of Australia for fourteen years, and had been its President since 2002. That Association had over 130 members throughout Australia, and provided, amongst other things, training and education to its members, including occupational health and safety matters. He referred to being proud of being part of those activities of the Association. · There was a preliminary hazard assessment checklist used by the business at the time of providing quotations for a job, although that was not used in relation to this particular work. There was an on-site hazard assessment checklist. That was not availed of at the time of this accident. There was a business occupational health and safety risk management procedure and that was operative at the date of the accident, and a copy of a risk assessment procedure. It was said in relation to that document, that it was not used in relation to the log splitter, because that document dealt with work off site, and the splitter was kept on site. · There was an occupational health and safety committee and Mr Narayan was a member of that committee. · For the financial year ending 30 June 2006 the business made a before tax profit of only approximately $100 and in the previous financial year, the business had made a loss of approximately $6,800. Mr Narayan was hopeful the business would make a small profit in the current financial year, and said that he personally received income through the business, and for the financial year ending 30 June 2006 that was a gross sum of just over $8,000, which, after expenses, gave him a taxable income of $6,200, and an identical sum was paid to his wife. · Mr Narayan spoke of being absolutely devastated that one of his employees had sustained a serious injury, and being extremely distressed at the occurrence of the incident. Following the accident Mr Narayan said he did everything he could to provide assistance to Mr Pettersen, including, in particular, offering him an opportunity of returning to employment with the business if he wished to do so, but Mr Pettersen did not accept that. He spoke of giving all the assistance that he could to both the police and the WorkCover Authority. · Immediately after the incident the company stopped using the wood splitting machine, removing its blade, and the machine has not been used since that time. · Mr Narayan convened a meeting of all the labouring staff to discuss how the incident occurred and how accidents like that could be prevented in the future. He reinforced the importance of carrying out the task that had been allocated, and doing all work in accordance with the training given and reinforced that each person had obligations in relation to health and safety. · After the incident, Mr Narayan provided an updated hazard assessment process which was used by the company and implemented the arrangements specifically for improving the information gathering processes required before the start of jobs. He conducted a review of the plant and equipment: some of that equipment was replaced because it was not appropriate; updated machinery was purchased. · Mr Narayan expressed the opinion that he had done everything he could possibly do to ensure that an accident like the one involving Mr Pettersen never occurred again to any of his employees, and said he was committed to doing everything he could to ensure that employees of the business were always safe. · Mr Narayan and his family were deeply and substantially affected by the accident, and sincerely regretted the accident. 12 After noting that the maximum penalty was $550,000 for the company and a maximum fine of $55,000 was available in relation to the breach involving Mr Narayan, Haylen J considered the objective seriousness of the offences. In this respect his Honour found as follows: [26] The machine performs a quite basic task. The machine is a quite basic piece of machinery. It is of some interest that the brochure available through the manufacturer, although speaking of its hands free operation, nevertheless has pictures of the operator while operating the machine with the knee, having hands on either side of the log as it is being split.

It is said by the prosecutor that there was a clearly foreseeable risk of hand and arm injury. The defendant accepts that it is a dangerous piece of equipment. Its plea accepts that this worksite lacked an interlocking device such as a two hand control device, as referred to in the Australian Standard, and that there was a lack of supervision on the day. [27] There was some issue about whether remedial steps were easily or readily available. There is no doubt that supervision was available and it appears to be part of the usual safety system of the company. It is unclear to me on the evidence, as to the availability of the interlocking devices or the two handed device referred to in the Australian Standard.

The Victorian Work Safe Authority's alert in 1999 spoke of the manufacturer developing a modification, including a double action to interlock the blade control, minimising the risk of unintended operation. This appears to be a reference to a system of operation where the lever is pushed by the knee, first sideways and then in so that there are two movements required. This enhancement of the equipment does not directly address the issue of securing the hands and arms from coming into contact with the machine.

To that extent, there were remedial steps available, but I have doubt as to how immediately available those steps were, and I note from the evidence that although Work Safe Victoria in 1999 was speaking about the manufacturer's development of a modification, it appears that the manufacturer had not contacted all of the purchasers of this equipment to inform them of the availability of the modification.

Considering all those matters, this is properly to be considered as a serious breach of the Act. 13 As to general deterrence, his Honour considered there should be an element in the setting of a penalty for general deterrence. In relation to specific deterrence his Honour held at [29]: [T]he company and Mr Narayan, its director, have a long history of operating in an industry that has quite dangerous machinery as part of its every day equipment. The evidence discloses a review of that machinery, a putting aside of the log splitting machine since the accident, and an admission that there was a gap in the system, but evidence of a system of training. It seems to me in those circumstances specific deterrence has a reduced role to play, but nevertheless a role in the setting of an appropriate penalty. 14 In relation to subjective factors, Haylen J held the following matters were to be taken into account: · There was an early plea in both these matters, and the defendants should each be entitled to a discount of 25 per cent. · The defendants are both entitled to consideration for having a record without prior convictions, considering the length of their involvement in this industry, and the nature of the industry. · The evidence demonstrates contrition, both by the entering of the early plea and by the expressions of concern for Mr Pettersen by the company and Mr Narayan. It was also demonstrated by the review of the systems and the changes in the system, which were introduced following the accident. · There was co-operation with the WorkCover investigation. · The company and the personal defendant were intertwined in the sense that the company directors, Mr Narayan and his wife, were shareholders of the company. 15 The appellants sought consideration under s 6 of the Fines Act 1996. In this respect, his Honour stated at [32]: I have evidence from Mr Narayan about the two recent financial years of this company, and the small returns made. That material, however, does not tell me anything about the available resources of the company generally, the capacity to pay a fine, nor does it give any reason as to why there might have been a downturn in the business which employs eleven people, when both he and his wife appeared to make a very modest income. Ultimately, I am not assisted by that material in setting an appropriate penalty. 16 The orders made by his Honour were in the following terms: 1. In relation to matter No 2505 of 2006 : (a) the defendant Mahabir Holdings Pty Limited is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 2505 of 2006;

(b) the defendant is to pay a fine of $95,000 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.

2. In relation to matter No 2504 of 2006 : (a) the defendant Shiu Narayan, being a director of Mahabir Holdings Pty Limited is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 by operation of s 26 of the Act, as particularised in the Amended Application for Order in Matter No 2504 of 2006;

(b) the defendant is to pay a fine of $8,500 with half that sum to be paid to the prosecutor by way of moiety;

(c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. Appellants' submissions

17 The appellants acknowledged that in order to succeed they had to show that the penalties imposed by the judge at first instance were manifestly excessive or that there was an error on the face of the judgment. It was said that the principles in House v The King (1936) 55 CLR 499 applied; see also WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at 457-460. 18 In this appeal, the appellants relied upon the 'manifestly excessive' limb. Thus the test, it was submitted, was whether the penalty imposed was outside the range of permissible penalties that could be imposed. 19 It was submitted that the narrowness of the omissions alleged against the appellants (failure to provide supervision and that the use of a machine that the supplier had provided without a guard, i.e., an interlocking device) demonstrated that their culpability was not such that it should have attracted such a high fine in all of the circumstances. 20 The appellants acknowledged there was a relevant Australian Standard. This was referred to in his Honour's judgment as being Australian Standard AS4024.1, which recommended that where guarding was impracticable, two handed control devices offered a means of protecting the hands of the machine operator. The Standard, at clause 9.3.3.2, recommended that dual activated devices of a two hand control shall be designed and arranged in such a way that the protective effect of the two handed control devices cannot be easily defeated, and the probability of accidental amputation is minimised in accordance with the risk assessment for the task. 21 It was submitted, however, that there had been no communication from the manufacturer about any modifications or alterations being required to the machine. Further, it was submitted that it was unclear to Haylen J whether remedial steps such as interlocking devices or the two handed devices referred to in the Australian Standard were immediately available (see [27] of his Honour's judgment). Counsel for the appellants submitted that the culpability arising from the failure to have such a device on the block splitting machine had to be considered in this context. 22 In relation to the failure to provide supervision it was submitted that the failure was confined to a short time frame, albeit that it had serious consequences. Further that: There is an air of unreality (in any event) in requiring continued direct supervision over a task such as this where the operator is operating the machine properly and there is no allegation of any deficiency in the operator's training. 23 It was accepted by the appellants that, in an objective sense, the offences were serious. However, it was submitted Haylen J failed to impose penalties to deal with the narrow scope of the omissions alleged against the defendants. 24 As to subjective factors, it was submitted that Haylen J failed to properly take into account that the appellants had no prior convictions, that the offending machinery at the direction of the first appellant had not been operated since the incident, that the appellants had cooperated fully with the prosecutor and that the appellants had entered early pleas of guilty. 25 The appellants acknowledged the difficulties of comparing penalties. Nonetheless, it was submitted that a review generally of the type of cases that have attracted fines of the magnitude imposed by Haylen J demonstrated that the fines were excessive. Respondent's submissions

26 The respondent submitted the appeal should be dismissed. It was contended the appellants were required to establish error and even if error was established the sentence may not be altered or varied unless the appellate court was satisfied that some other sentence was warranted: Cabonne Shire Council v Environmental Protection Authority (2001) 115 LGERA 304 at 306. It was submitted the appellants have failed to demonstrate any error in their respective sentences. 27 Referring to the particulars of the charges the respondent submitted that although relevant to establishing the parameters of the offence, they were not determinative of the seriousness of the offence. There are other factors taken into account by the Court.

28 The respondent noted that the appellants, either at first instance or on appeal, did not contest the assessment by the primary judge that the offence was a serious one. This concession, it was submitted, was inconsistent with the appellants' complaint in this appeal that the penalties were manifestly excessive.

29 Ms P E McDonald of counsel for the respondent submitted that the appellants had ignored other factors taken into account by the primary judge when determining the objective seriousness of the offence. These factors included: (i) the maximum penalty;

(ii) the superaxe splitting machine was a dangerous piece of equipment as conceded by the appellants;

(iii) the risk was foreseeable as conceded by the appellants;

(iv) there were simple remedial steps available in respect of the provision of supervision; and

(v) there were remedial steps available in respect of the superaxe machine, the primary judge "had doubts as to how immediately available those steps were". It was also observed that Haylen J took into account general deterrence and specific deterrence although specific deterrence was given a reduced role. 30 Ms McDonald submitted that when these factors were taken into account it was clear that the penalties imposed were not manifestly excessive. 31 As to the appellants' submission that his Honour failed to take into account relevant subjective factors (lack of prior convictions, the direction by the second appellant after the incident forbidding the use of the axe splitting machine and cooperation with the WorkCover inspector) the respondent contended the appellants had not indicated the manner in which Haylen J allegedly did not take these subjective factors into proper account. But that in any event the submission was wrong because Haylen J referred to these matters in his judgment and clearly took them into account. 32 As to the issue of comparable penalties the respondent submitted the appellants had acknowledged the difficulties on appeal in comparing penalties imposed in other judgments. This acknowledgement is consistent with authority (see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [61] to [70]; WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 at [8]; Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 at [24] to [26]). But in disregard of these authorities the appellants referred to a "review" of cases which were comparable because of the fine imposed and asserted that this review demonstrated the excessive nature of the fine imposed. As the respondent submitted, there was no reference to any case that might have been the subject of the appellants' review. Consideration

33 The principles to be applied in an appeal from a sentencing decision are those laid down in House v The King (1936) 55 CLR 499 at 505 and WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449. That is to say, the Court will only intervene if an error of principle or a mistake of fact or law is established whereby the primary judge's sentencing discretion miscarried, or if the sentence is so excessive that the exercise of the discretion must have been affected by error: Cabonne Shire Council at 306. 34 In the present appeals, the appellants contended the error committed by the primary judge was of the third kind identified in House v The King and paraphrased in Cabonne Shire Council. The nature of this error was explained in Dinsdale v The Queen (2000) 202 CLR 321 at 325: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. 35 The issue on appeal then, is whether the fines imposed by the primary judge of $95,000 for the corporate appellant and $8,500 for the personal appellant were manifestly too high when regard is had to those factors to be taken into account in determining sentence. 36 The corporate appellant accepted by its guilty plea that it failed to ensure the safety of Mr Pettersen in two ways: it failed to ensure that the Superaxe Splitting Machine was safe in that it "failed to ensure that there were adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated"; and, it failed to provide the necessary supervision to ensure Mr Pettersen's safety. 37 The personal appellant also pleaded guilty, obviously having regard to his acceptance of the fact that he was a director or person concerned in the management of the corporate appellant: see s 26 of the Occupational Health and Safety Act. That section provides that if a corporation contravenes, whether by act or omission, any provision of the Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision, unless one of the defences provided by s 26(1) can be made out. 38 The wood splitting machine was a portable hydraulically operated cutting blade set up on a metal trailer. A petrol engine was fitted to the southern end of the machine. The engine was used to drive the hydraulics of the machine. On the northern end of the machine was a steel operating bench measuring 1500mm x 900mm, at a height of 800mm from the ground. At approximately the centre of the steel bench was the hydraulically operated steel cutting blade. The blade was a solid steel "V" shaped block measuring 300mm long, 75mm wide at the top reducing over a depth of 170mm to the cutting edge of the blade. The agreed statement of facts tendered in the proceedings before Haylen J described the operation of the machine: [22] The usual way of operating the machine required the operator to place a log on the steel operating table of the machine directly underneath the cutting blade and, once the engine of the machine was operating and the log in place, the operator of the machine places his/her leg in a u-shaped lever at the front of the operating table and by pushing his/her leg against that u-shaped lever the cutting blade of the machine would lower and by pulling his/her leg backwards the blade would rise.

[23] The log could either be lifted directly onto the table of the machine or, if it was too heavy, it could be lifted using a log lifter attached to the trailer of the machine to raise it onto the table of the machine.

[24] Apart from using hands to locate the log underneath the cutting blade of the machine, it was not necessary for the operator to use his/her hands to operate the machine during the cutting process.

[25] Once the log was cut the operator would either re-position it for another cut and/or remove the cut portions from the table of the machine.

[26] There was (sic) no adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated. 39 As the primary judge noted, Mr Pettersen appeared to have become distracted whilst operating the machine and as he leant forward on the knee control of the machine the blade stroked and came in contact with his right arm, causing his wrist to be partially severed. He later underwent surgery to amputate his right wrist. We were advised on appeal that Mr Pettersen's hand was surgically re-attached but we are not aware of how successful the operation was. 40 Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] and [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 41 In the present case, given the inadequacy of the guarding of the machine, it is obvious that a failure to ensure safety had every prospect of serious consequences and, indeed, that proved to be the case. All it took for an employee to suffer severe injury was for him to have become momentarily distracted. 42 The respondent submitted to the primary judge that the risk to safety, that is the risk of amputation by the machine's cutting blade, was foreseeable. In the proceedings at first instance counsel for the appellants conceded that the risk was, in fact, known and that must have been so. In addition to the self-evident risk of operating a machine that provided no guarding whatsoever against an operator inadvertently placing a limb within the striking distance of the cutting blade, the operator's manual, which was provided to Mr Pettersen by the personal appellant, stated, "IMPROPER, UNSAFE OR RECKLESS USE OF THIS MACHINE COULD RESULT IN SEVERE PERSONAL INJURY TO THE OPERATOR". The manual also provided the following warnings: Always keep your hands on side of the block, NEVER ON THE TOP. … NEVER allow yourself to be distracted from the operation of the machine. If distraction occurs, stop and deal with the distraction. DO NOT CONTINUE OPERATING. 43 In the absence of adequate guarding mechanisms the log-splitting machine was inherently dangerous. The appellants submitted, however, that whilst the relevant Australian Standard recommended the installation of two handed control devices as a means of protecting the hands of the machine operator, there had been no communication from the manufacturer about any modifications or alterations being required to the machine. Further, that it had been unclear to the primary judge whether remedial steps, such as interlocking devices or the two handed devices referred to in the Australian Standard, were immediately available. It was submitted for the appellants that the culpability arising from the failure to have such a device on the block splitting machine had to be considered in this context. 44 Thus, the appellants' submission was that if a supplier or manufacturer provides a machine that is inherently dangerous, if there has been no communication from the manufacturer about any modifications or alterations being required to the machine, and if devices to make the machine safe may not be immediately available, these are factors that make the appellants less culpable when it comes to considering the seriousness of the failure to ensure the machine provided for use by the company's employees at work was safe and without risk to health. 45 Against this, however, is the fact that the appellants knew the machine was unsafe and there is no evidence the appellants took any steps, including making inquiries of the manufacturer, WorkCover or any other agency, with a view to improving the safety of the machine, let alone to ensuring that it was safe to use. Whilst his Honour found that devices to make the machine safe may not have been immediately available, Haylen J did find remedial steps were available. Moreover, it was always open to the appellants to refrain from using the unsafe machine. This was, in fact, the course they took after the incident. 46 In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 the Full Bench at [43] quoted with approval the observations of Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 47 The conduct of the appellants could not, in any way, be described as proactive; they knew the log-splitting machine presented a risk to the safety of the operator but did nothing to modify, or attempt to modify, the machine in order to ameliorate the risk. 48 As to the failure to provide the necessary supervision to ensure safety, his Honour found that "supervision was available and it appears to be part of the usual safety system of the company". The appellants submitted the absence of supervision was only for a short time and that there was "an air of unreality… in requiring continued direct supervision over a task such as this where the operator is operating the machine properly and there is no allegation of any deficiency in the operator's training." 49 The notion of supervision is not confined to a supervisor constantly standing at an employee's shoulder ensuring every aspect of a task is carried out safely, although in some circumstances that may be necessary, especially during a course of training. Mr Pettersen had been given a demonstration of how the machine worked and had been provided with a copy of the operation manual, although there was no evidence that he had, in fact, read the manual. He was also, according to Mr Narayan, experienced in operating the machine. But his primary task was that of a truck driver. In those circumstances, given the dangerous nature of the machine, some degree of supervision was necessary to ensure that whenever Mr Pettersen was called upon to operate the machine he could do so safely. No supervision was provided to Mr Pettersen on the day of the incident, either directly or by way of instruction to, for example, conduct a risk assessment before operating the machine or, given the operation of the machine was a secondary task as far as Mr Pettersen was concerned, requiring Mr Pettersen to seek permission to operate the machine so that his supervisor, Mr Narayan, could satisfy himself that Mr Pettersen would operate the machine safely. 50 Given that Mr Pettersen had been trained to use the machine (although the training appears to have been minimal) and he was experienced in using the machine, the failure to provide supervision, of itself, may not have been at the high end of seriousness. However, when it is considered in conjunction with the provision by the appellants of a dangerous machine, it did increase the objective seriousness of the offence. 51 The appellants submitted that Haylen J failed to properly take into account relevant subjective factors (early plea of guilty; lack of prior convictions; the direction by the second appellant after the incident forbidding the use of the axe splitting machine; cooperation with the WorkCover inspector; and that the corporate appellant and the personal appellant were intertwined in the sense that the company directors, Mr Narayan and his wife, were shareholders of the company). We take this submission to mean that in light of what the appellants contended was a manifestly excessive penalty, his Honour did not give these factors sufficient weight. We make this assumption because clearly his Honour took the relevant subjective factors into account (see [29]-[30] of his Honour's reasons for judgment). 52 As to the early plea of guilty, Haylen J allowed a discount of 25 per cent, which, in the circumstances, was perfectly appropriate. His Honour did not assign any discount for the other subjective factors, nor should he have. But there is nothing in his Honour's judgment to suggest he did not appropriately have regard to those factors in determining the penalties. The early plea and the other subjective factors led his Honour to conclude, in the light of the objective seriousness of the offence, that a penalty of $95,000 was appropriate for the corporate appellant and $8,500 should apply to the personal appellant. 53 Mr R Reitano of counsel for the appellants referred to a number of cases where he submitted some parallels could be drawn in respect of the nature of the risk, but where the penalties imposed were significantly lower than those ordered by Haylen J. This submission was not pressed with any great confidence as far as we could ascertain and understandably so. It has been held on a number of occasions by this Court and the Court of Criminal Appeal that comparisons with sentences passed in other cases is not helpful: see R v Trevenna (2004) 149 A Crim R 505 per Barr J at [98]-[101]; WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313 where it was observed at [38]: We consider that there are real difficulties in comparing penalties imposed under the Occupational Health & Safety Act, even in cases where there is an essential common feature, such as a falling incident, crushing incident, etc. because of the myriad of differing surrounding factual circumstances in the cases. 54 An offence under s 8(1) of the Occupational Health and Safety Act is an inherently serious offence. The offence attracts a maximum penalty of $550,000 for a corporate defendant and $55,000 for a personal defendant. For the corporate and personal appellants the fines, as percentages of the maximums, were both in the second decile. That reflects a level of seriousness towards the lower end of the range of seriousness. 55 There is no single correct sentence: Markarian v The Queen (2005) 79 ALJR 1048 at [27]. Whilst the Court constituted differently to the primary judge in this matter might have fixed different penalties, the penalties determined by Haylen J, being within an appropriate range given the seriousness of the offences, do not reflect error by his Honour. Orders

56 We make the following orders: Matter No IRC 916 of 2007

(3) The appellant shall pay the respondent's costs of the appeal in a sum as agreed or in the absence of agreement, as assessed.

(3) The appellant shall pay the respondent's costs of the appeal in a sum as agreed or in the absence of agreement, as assessed.

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