[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