Consideration
50In Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 I addressed the principles to be applied in sentecing a defendant under the Act. I adopt what I there said at [43]-[47].
51By its plea the defendant has admitted that its employee, Rodney Flight, was put at risk of being involved in a collision and being injured as a result of any such collision.
52The circumstances in which this risk arose were described by Mr Lean in his affidavit:
On 4 August 2008 at approximately 10.20pm a CAT IT 18 machine (NFL 15) was involved in an incident. It has not been possible to identify the actual cause of the incident. It was identified that Mr Flight was not wearing a seatbelt at the time of the incident. His failure to wear the seatbelt as required by Perilya BH's SWP U408 increased his risk of injury significantly.
I participated in an investigation of the incident which took place on the 5 August 2008 at the time NFL 15 was in the position on its side as a consequence of the incident. It was clear that there were no skid marks and further that although NFL 15 had tipped onto its side, it had immediately come to rest and not slid along the road way in that position. As NFL15 had not skidded along the roadway I formed the view that NFL 15 had been travelling at a slow speed immediately prior to and at the time of the incident.
53It may reasonably be concluded from this evidence, the ASF and the Amended Application for Order that on the evening of 4 August 2008, Mr Flight was operating NFL 15, that Mr Flight was not wearing a seatbelt whilst operating the Carrier, that NFL 15 tipped onto its side, that Mr Flight was exposed to the risk of being involved in a collision resulting in injury as a consequence of the defendant's acts or omissions, but that it was not possible to establish how the Carrier came to be on its side.
54Nowhere in the evidence is there any reference to whether Mr Flight in fact suffered any injury as a result of the risk to which he was exposed as a consequence of the defendant's acts or omissions. According to senior counsel for the defendant the reason for this was that the cause of the accident could not be established.
55What I think counsel meant was that although it had been admitted the defendant's acts or omissions exposed Mr Flight to the risk of injury, it could not be proven that placing Mr Flight at risk led to a particular injury because it could not be established to the relevant standard of proof how any injury might have occurred. In other words, that any injury, if it had occurred, may not have been a direct result of the risk created by the defendant, in which case the Court could not have regard to the injury, or even that injury was sustained, for the purpose of determining whether the seriousness of the injury manifested the degree of seriousness of the risk: see Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94].
56It would seem I must accept this submission. The artificiality of it, however, is demonstrated by the fact that although neither the prosecution nor the defendant wished the Court to know whether Mr Flight sustained injury, he and his family were provided with very substantial assistance and support following the incident for a period of about six months including mowing lawns and house cleaning. The explanation for this was that "Mr Flight was involved in an accident." It is an extraordinarily generous employer that would provide such assistance and support for six months because an employee was merely involved in an accident.
57That leaves a situation where although the prosecutor was able to rely on the agreed fact that Mr Flight was at risk of suffering serious injury, including death, the defendant was able to refer to the evidence of Dr Richardson that on any of his scenarios the risk of serious injury or death was relatively low. In the absence of any evidence relating to whether an injury had been suffered by Mr Flight and the nature of that injury, the Court faced the more difficult task of assessing the theoretically based evidence of Dr Richardson in attempting to determine the seriousness of the risk.
58Turning to the defendant's failures to ensure Mr Flight was not exposed to risk, the defendant admitted that it failed to ensure that NFL15 was properly maintained. The maintenance failure was demonstrated by:
(a) the brake master cylinder overstroke indicators being in a popped out position;
(b) the service brake warning light and alarm being non-operational;
(c) a loose pipe fitting at the T-piece at the top of the rear axle;
(d) the front right brake pipe being corroded; and
(e) that the defendant did not ensure there was in place an effective system to audit the maintenance of NFL15.
59Given the maintenance failures it may reasonably be concluded the Carrier was in poor serviceable condition.
60The defendant further admitted that it failed to put in place a safe system of work so as to ensure NFL15 was properly inspected prior to being used. In this regard the defendant failed to:
(a) provide to operators appropriate forms for pre-start checks relating to NFL15;
(b) ensure that operators knew how to properly inspect NFL15 and document those inspections prior to use of NFL15; and
(c) ensure that there was in place and enforced an effective system to audit the inspections of NFL15.
61As the ASF revealed, the failure to properly maintain the IT Carrier compromised the effectiveness of the braking capacity of the vehicle. This failure was exacerbated, in terms of its implications for safety, by the fact that the warning system on the vehicle in relation to a faulty braking system was not operational. Thus, faulty brakes with reduced braking capacity, and the potential for no braking capacity at all, and no warning system of the danger that existed of faulty brakes.
62In addition, as the ASF identified, the defendant did not have in place an effective system to audit the pre-start checks and inspections of NFL 15. The failure to audit pre-start checks and inspections led to the type of problem referred to in the ASF:
Of the 8 IT carriers operated by Perilya, 3 had brake fluid reservoirs. The other 5 IT carriers did not have brake fluid reservoirs, as their brake systems were fully enclosed hydraulic systems. Mr Flight stated that he did not know that NFL 15 had a brake fluid reservoir, even though he had completed on 4 August 2008 the light vehicle operator shift check sheet indicating that he had checked the brake fluid level. Other employees thought that the braking system was a fully enclosed hydraulic system on all IT carriers.
63There was a failure in the communications chain in the defendant's maintenance system that led to the following circumstance described in the ASF:
As a result of failures within the system there were occasions when the maintenance staff were not aware of the information placed on pre-start check forms in relation to the equipment on which the maintenance staff were working.
An example of this occurred on 3 August 2008 when the apprentice who worked on NFL15 on that day was not aware that there had been specifically recorded, on a pre-start check sheet on 2 August 2008, the fact that one of NFL 15's brake fluid reservoir was empty.
64The maintenance system failures admitted by the defendant were quite fundamental, leading as they did to faulty brakes on a 9 tonne vehicle in circumstances where the vehicle could collide with another vehicle in an underground mine, or a person, or any object or wall in the mine because its brakes were not fully effective and in doing so place the safety and health of the operator of the vehicle at risk. Moreover, the operator could not be aware of the faulty braking system because the warning system was inoperative.
65That leads me to the seriousness of the risk. The defendant submitted that on the basis of Dr Richardson's expert evidence the probability of serious injury or death was low, whichever scenario was applied. Counsel for the prosecutor, however, submitted the Court should attach no weight to those portions of Dr Richardson's report that seek to quantify risk for the following reasons:
(a) The Richards study and table (fig 2 of Dr Richardson's report) deal with criteria which the Court should find cannot be applied to the relevant circumstances of a 9-plus ton IT carrier.
(b) Richards (the author of the UK study) makes clear in his introduction (as confirmed in Dr Richardson's oral evidence) that variables such as age, gender, biomechanical tolerance, seatbelt wearing, vehicle size and shape, effectiveness of absorbing impact energy and the characteristics of the object hit will impact upon the "injury severity of people involved".
(c) The oral evidence of Dr Richardson makes clear there was a much higher risk of serious injury in side-on collisions than front-on collisions.
(d) The rollover opinions were limited to seat belt wearing occupants.
(e) Dr Richardson conceded the conclusions he drew in relation to rollover were "general" or "blunt".
(f) The inability to accurately replicate human movement (see Richardson report pp 31, 32, 36).
66Each of the criticisms made by the prosecutor of Dr Richardson's report has some substance. However, I note, in particular, Dr Richardson was only asked to provide an opinion as to the potential exposure to injury of the operator of an IT Carrier like NFL 15 on the assumption that the operator of the IT Carrier was wearing a seatbelt. He complied with that request.
67The evidence is that Mr Flight was not wearing a seatbelt when he was exposed to the risk. Accordingly, Dr Richardson's report is of no assistance in determining the extent to which Mr Flight was, in fact, exposed to serious injury or death as a consequence of the defendant's acts or omissions. For example, Dr Richardson quoted an American study that stated, "You're 75% less likely to be killed in a rollover crash if you're wearing your safety belt."
68The defendant contended that it had not been charged with failing to ensure Mr Flight was not wearing a seatbelt and that the Court should proceed on the assumption that the operator would wear the seatbelt, given that was the instruction from the defendant.
69There does seem to be somewhat of an inconsistency in the defendant's position in that it contended for the purpose of assessing the likelihood of serious injury or death (and therefore the seriousness of the detriment to safety), the Court should proceed on the assumption that Mr Flight was wearing a seatbelt, but that in assessing the objective seriousness of the offence, the Court should take into account in mitigation that Mr Flight was not wearing a seatbelt. In other words, the defendant wants the Court to accept the risk of serious injury or death was very low because, amongst other things, it is to be assumed Mr Flight was wearing a seatbelt and having made that finding to also find Mr Flight contributed to the risk because he was not wearing a seatbelt.
70In my opinion, given Mr Flight was not wearing a seatbelt, there was every possibility if the Carrier were to roll over that Mr Flight could be ejected from the Carrier and be subject to the risk of the Carrier rolling on top of him or him becoming trapped under the Carrier. The fact he was not wearing a seatbelt increased his exposure to the likelihood of injury or death quite significantly.
71It is a well-established principle that the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry: WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 247 at [257]. It is also well-established that the Act requires employers to be diligent and proactive to ensure the safety of employees and that those obligations are not diminished because of the error or negligence of an employee: Riley v Australian Grader Hire Pty Limited [2001] NSWIRComm 31; (2001) 103 IR 143 at [15].
72The fact that Mr Flight was not wearing a seatbelt may reflect on the degree of culpability of the defendant for the purposes of sentencing: Riley at [15]. Whether it does so or not, and if so to what extent, will depend on a number of considerations that include the degree to which the defendant sought to meet its obligations under the Act by being diligent and proactive in seeking to ensure that Mr Flight took advantage of a vital piece of safety equipment, namely, the seatbelt. This is particularly so where the defendant in mitigation seeks to rely on Mr Flight's failure to wear the seatbelt. It will also depend on why no seatbelt was worn, whether the employee was required to wear the seatbelt whilst operating the Carrier and whether the employee knew of the requirement to wear a seatbelt.
73The evidence indicates that the defendant required a seatbelt to be worn and that Mr Flight knew of the requirement to wear a seatbelt. There was no evidence as to why the seatbelt was not being worn at the time the risk arose.
74According to Mr Lean's evidence, Mr Flight was last signed off as competent in relation to the procedure to be followed for traffic control and communication whilst travelling underground (which was SWP U408 and which provided for seatbelts to be worn in all vehicles) on 10 May 2008. Mr Lean said that Mr Flight had been signed off three times previously on the dates 22 June 2005, 6 July 2006 and 10 May 2008. These appear to be merely declarations by Mr Flight that he had read U408 and agreed to be bound by it.
75The only time that Mr Flight was actually observed operating an IT Carrier for the purposes of determining whether he was competent was on 14 November 2006. There was no evidence of any random checks on Mr Flight whilst he was operating an IT Carrier to confirm he was complying with the rules in U408, including the wearing of a seatbelt. It seems to me that if the defendant was to meet its obligation of being diligent and proactive in seeking to ensure employees were at all times complying with safety rules, particularly one as important as the wearing of seatbelts, random checks were an essential part of the defendant's safety procedures.
76I accept that had Mr Flight being wearing a seatbelt at the time the risk arose, the probability of him being placed at risk of serious injury or death would have been considerably less than the risk he was exposed to whilst not wearing a seatbelt. In the circumstances, it has to be accepted that Mr Flight's non-compliance with the defendant's clear instruction, of which he was aware, to wear a seatbelt mitigates the objective seriousness of the offence. However, in my opinion, the defendant could have been more diligent and proactive in policing the requirement to wear seatbelts and I have taken that into account in assessing the objective seriousness of the offence. I do so against the background of serious failures on the defendant's part to ensure that NFL15 was properly maintained and to put in place a safe system of work so as to ensure NFL15 was properly inspected prior to being used. Moreover, I have also had regard to the following:
(a) the gradient of the decline which carried the mine's transport was 1 in 7;
(b) there was a risk that other tool-carrying vehicles would be using the decline at the same time as NFL15;
(c) other roadways intersected with the decline, creating the risk of side-on collisions;
(d) drivers were instructed to drive into the wall in the circumstances of vehicle runaway; and
(e) Mr Adamson's opinion that a pre-accident dent rendered the park brake virtually ineffective.
77In assessing the objective serious of the offence the Court is required to have regard to whether there was 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 Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 at [88]. See also: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 per Walton J, Vice-President, approved in Capral Aluminium at 646; Morrison v Coal Operations Australia Limited (No. 2) [2005] NSWIRComm 96; (2005) 141 IR 465 at [11].
78It was reasonably foreseeable, indeed obvious, that if an operator were allowed to operate a vehicle that was not properly maintained to the extent that its brakes may fail that the operator's safety would be put at risk. The very fact the defendant had an elaborate but flawed system in place to check and maintain its vehicles, including the maintenance of braking systems on those vehicles, shows that the defendant knew of the importance of ensuring the vehicles were roadworthy. The risk in this case was significantly increased by the fact that the warning light and alarm relating to the braking system were inoperative. The steps taken by the defendant after the incident to prevent a recurrence demonstrate the fact there did exist available and feasible measures to avoid the risk.
79That the risk was obvious and measures were available to avert the risk of serious injury or death increases the objective seriousness of the offence.
80The Court is required to give consideration in the sentencing process to general and specific deterrence: Capral. It was held in that case that both aspects of deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare...." (at [74]).
81There is clearly a case for any sentence to include consideration for an element of general deterrence. Vehicles are commonplace in industry and the importance of ensuring they are properly maintained and checked cannot be overstated if safety is to be paramount, as it must be. It is appropriate to draw the attention of employers generally to this obligation by fixing an appropriate penalty in this case.
82In relation to specific deterrence the objective is to deter the particular offender from repeating the offence. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence: Capral at [76]. In Capral it was also stated at [77] that employers must adopt an approach to safety which is pro-active and not merely re-active and that in view of the scope of those 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. It was said this was particularly so where the offender conducted a large enterprise which involved inherent risks to safety.
83Weighing in the defendant's favour is the fact that prior to 4 August 2008 it did have in place elaborate maintenance procedures designed to ensure vehicles were checked and properly maintained. The procedures, however, were flawed to the extent they created a serious risk to the safety of Mr Flight. Nevertheless, the defendant must be regarded more favourably in the context of considering specific deterrence than an employer that had no maintenance procedures in place because it indicates the defendant was aware of its safety obligations and had sought to meet those obligations.
84Furthermore, in acknowledging its shortcomings the defendant took commendable steps to review and revise its maintenance procedures to ensure there was no recurrence of the incident that took place on 4 August 2008.
85In considering specific deterrence it is relevant to have regard to the defendant's antecedents. The defendant has one relevant prior conviction that the Court may take into account in determining sentencing (the conviction was in relation to an offence on 28 November 2002 with a penalty imposed and conviction recorded on 8 June 2007: Morrison v Perilya Broken Hill Limited [2007] NSWIRComm 115).
86The defendant has a record of two other convictions for offences committed under the Act on 9 January 2007 and 6 November 2007. Penalties were imposed and convictions recorded on 25 May 2010 and 2 March 2011 respectively. Whilst the two offences were committed in 2007, convictions were not recorded until 2010 and 2011, that is, after the date of the offence in this matter. In considering the sentence in this matter I am to treat the 2007 offences in the manner determined in R v Hutchins (1957) 75 WN (NSW) 75 at 75, namely, that I am entitled to look at the two convictions in relation to the 2007 offences, not for the purpose of imposing a sentence heavier than would otherwise have been imposed, but for the purpose of considering whether the defendant was deserving of lenient treatment: see also R v Kennedy (unreported, NSW Court of Criminal Appeal, 29 May 1990) and R v Boney (unreported, NSW Court of Criminal Appeal, 22 July 1991).
87The defendant's record precludes any leniency or any discounting of any element I might otherwise include in the penalty for specific deterrence if the defendant's record had been a good one. What is more, the defendant is a large enterprise operating in an industry that is notoriously dangerous, that is, the mining industry. There is utility in including in the penalty an element for specific deterrence "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": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388.
88Given the prior conviction I earlier referred to the maximum penalty in this case is $825,000. The relevance of the maximum penalty was explained in Markarian v R [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [30] and [31] as follows:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
"A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick....
89There are a number of subjective considerations. The prosecutor conceded it was open to the Court to discount an otherwise appropriate penalty by 25 per cent due to the defendant's plea at the first opportunity to the Amended Application for Order. I propose to adopt the prosecutor's concession.
90I have also taken into account the defendant's cooperation with the prosecuting authority.
91In relation to remorse, I accept Mr Lean's statement in that regard as satisfying the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. In that connection I have also had regard to the commendable support and assistance the defendant provided to Mr Flight and his family.
92Having regard to the objective and subjective considerations in this matter, I have decided that an appropriate penalty is $260,000.