Regan v UGM Engineers Pty Ltd

Judgment 1The prosecutor in these proceedings, Robert William Regan, has charged the defendant, UGM Engineers Pty Ltd, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"), to which the defendant has entered a plea of guilty. This judgment is concerned, therefore, only with the question of penalty. 2The charge brought against the defendant is that it failed to comply with s 8(1) of the Act at the site of a coalmine near Singleton in the State of New South Wales, being the Beltana No. 1 Mine, on 21 August 2008. The particulars of the charge are as follows: The risk (1)An employee of the defendant, Mr Gregory Thomas was put at risk of being crushed between large and heavy items of plant, called cassettes or sleds, as he and his fellow workers Mr Scott Redgrove and Mr Brad Hafey were engaged in the task of coupling them together. The cassettes/sleds were 9m long x 2.15m wide and weighed 4.7 tonnes tare. The failures of the defendant (2)The defendant failed to ensure that Mr Thomas, Mr Redgrove and Mr Hafey were provided with such information, instruction, training and supervision as was necessary to ensure their health and safety in carrying out the task of coupling together the longwall service cassettes/sleds. (3)The system of work adopted by the men to couple together the cassettes/sleds was as follows: (a)To manoeuvre the cassettes/sleds into position together where the coupling lugs were able to be aligned Mr Redgrove drove a large machine known in the mining industry generically as an LHD (for 'load-haul-dump') machine and in this particular case being called a 'Juganaut' machine. (b)The Juganaut was not attached to the cassette/sleds but was driven by Mr Redgrove so as to push the cassette/sled being moved into position. (c)Mr Thomas stood on one of the cassettes/sleds while the cassettes/sleds and coupling lugs were being pushed together. As the two cassettes/sleds were coming together Mr Thomas lent down to lift the coupling lug and stepped off the cassette/sled. (d)Mr Hafey acted as spotter for the team. (4)The specific failures of the defendant are that: (a)The men did not receive such adequate instructions from any person as to a safe method of doing the job, nor such information or training as to the forces involved or risks to be avoided as was necessary. (b)The men were not supervised by the defendant as was necessary but were left to their own ad hoc devices, and as a result were put at risk of adopting an inadequate and dangerous system, which they did. (c)The men did not receive instructions as to the requirement for a no-go area around the cassettes/sleds as the Juganaut was moving them into position for coupling together as was necessary. (d)What the defendant should have done (5)The defendant should have ensured that its employees were informed, instructed, trained and supervised as was necessary so that the men adopted a system for bringing the cassettes/sleds together for coupling which did not require Mr Thomas to be anywhere near the pinch point between them at all whilst they were being manoeuvred by the Juganaut - such as using a manual block-and-tackle for the final closure of the coupling lugs. (6)Further, the defendant should have ensured that its employees were informed, instructed and trained as was necessary so as to be properly aware of at-risk positions and the need for no-go zones in relation to machinery-to-people interaction - and in relation to the particular task that Mr Thomas, Mr Redgrove and Mr Hafey were carrying out on 21 August 2008, as to the need to enforce an adequate no-go area around the cassettes/sleds as the Juganaut was moving them into position for coupling together. (7)The defendant should have ensured that the men were supervised as was necessary by an experienced person so as to eliminate the risk that an inadequate and dangerous system would be adopted. (8)If it was not reasonably practicable because of cost, communication or time constraints for the defendant, as a labour-hire company, to directly provide the necessary information, instruction, training and supervision of its employees, it should have ensured that the host employer, Beltana Highwall Mining Pty Limited, did so. As a result of the defendant's failures Gregory Thomas was placed at risk as to his health and safety, and he was injured when he was crushed between two cassettes/sleds. 3There was tendered into evidence for the prosecutor an agreed bundle of documents including an agreed statement of facts and other documentation, some of which I shall refer to later in these reasons for judgment. 4The agreed statement of facts is in the following terms: (1)At all material times, the Prosecutor was an Inspector duly appointed under subsection 145(1)(a) of the Coal Mine Health and Safety Act 2002 ("CMHS Act") and thereby by section 47B of the Occupational Health and Safety Act 2000("OHS Act") was taken to have been appointed as an inspector under the OHS Act and authorised by subsection 106(1)(c) of the OHS Act to institute these proceedings. (2)At all material times, U.G.M. ENGINEERS PTY LIMITED (ACN 077 167 116)("UGM") was a company with its registered office located at Level 1, 763 Hunter Street, Newcastle West NSW 2302. (3)At all material times, Beltana Highwall Mining Pty Limited (ACN 095 339 629) ("Beltana"), was a company duly incorporated with its registered office located at 1 Macquarie Place, Sydney NSW 2000. (4)At all material times, Beltana was the nominated operator under the CMHS Act of the Beltana No.1 Mine ("the Mine"), located approximately 18 km southwest of Singleton in the Upper Hunter Valley of New South Wales. (5)The Mine was a coal workplace within the meaning of the OHS Act being a place of work to which the CMHS Act applies. (6)On 21 August 2008, UGM was an employer that failed to ensure the health, safety and welfare of its employees whilst at the mine in that it did not provide adequate information, instruction, training and supervision. (7)UGM is a professional services company and mining contractor that provides a range of services to the underground coal industry and related sectors in both New South Wales and Queensland including but not limited to coal roadway development and extraction; longwall maintenance and extraction; the supply of supplementary labour on a labour hire basis to coal mines; safety, training and environmental management systems development and implementation. (8)Gregory Thomas was an employee of UGM who was working in Beltana's undertaking at the Mine and was put at risk of being crushed between large and heavy items of plant, called cassettes or sleds, as he and his fellow UGM workers Scott Redgrove and Brad Hafey were engaged in the task of coupling them together. The cassettes/sleds were 9m long x 2.15m wide and weighed 4.7 tonnes tare. THE ACCIDENT (9)On 21 August 2008, at about 5.30pm, Gregory Thomas, a 52-year-old mineworker and an employee of UGM was working at the Mine as supplementary labour hire. Mr Thomas had over five years experience in underground coal mines and had been inducted and employed at the Mine and collieries at Awaba, Wambo Northern, Southerland, Newpac, Dartbrook, United and Glennies Creek. Mr. Thomas was at the Mine on the afternoon shift working as an outbye labourer and assisting in the setting up for the longwall move. (10)On 21 August 2008, at 3.00pm, Mr. Thomas arrived to start his shift. He along with the other UGM employees at the Mine attended a regular pre-shift talk by the Beltana Shift Undermanager on the surface at the muster area. At 4.00pm, Mr. Thomas and Mr. Hafey went underground and assisted the longwall crew with the (longwall) monorail flit (move). Mr. Redgrove went first to the workshop and collected the Juganaut load-haul-dump machine leaving it at the surface and then went underground to help with the monorail flit. (11)On 21 August 2008, at about 5.30pm, Mr. Thomas, Mr. Redgrove and Mr. Hafey were directed by Beltana's Longwall Deputy to bring in the longwall service cassettes. The three men walked to the surface and then Mr. Thomas and Mr. Hafey walked to where cassettes SB2 and SB1 were parked. Mr. Redgrove got back into the Juganaut and drove it with cassette SB3 in tow towards cassettes SB2 and SB1. (12)Mr. Thomas was to assist with connecting cassette SB3 to cassette SB2 while Mr. Redgrove was to drive the Juganaut and push the cassettes together to enable them to be joined. Mr. Hafey stood nearby as an observer and relay communication between Mr. Redgrove and Mr. Thomas. (13)After unhitching the towing chain, the Juganaut was used by Mr. Redgrove to push cassette SB3 closer and in line with cassette SB2 to allow joining. As Mr. Redgrove proceeded to push cassette SB3 with the Juganaut, Mr. Thomas stood on the deck at the front of cassette SB2 above the coupling. Mr. Thomas stood there so as to be ready to join the coupling when they were in position. As cassette SB3 was being pushed into position by the Juganaut, Mr Thomas stepped down to pick up the coupling as it appeared to him that the cassette SB3 was going to be pushed perfectly into place. (14)As Mr. Thomas stepped down from the deck of cassette SB2 to pick up the coupling he placed his right leg on the ground next to the front of the coupling of cassette SB2 and lifted the coupling and lug to about a horizontal position. As cassette SB3 was pushed (from the right of Mr.Thomas' position) closer it swung clockwise towards the join area. Cassette SB3 continued to move past the coupling join point and caught Mr. Thomas's leg between the two cassettes' couplings resulting in compound fractures to his right lower leg (15)Mr. Thomas received initial first aid from the Mine's rescue team. Mr. Thomas was subsequently airlifted to John Hunter Hospital, Newcastle, where he underwent a series of operations on 21 August 2008 and the next few days to clean his wound and attend to the fractures. Further surgery was subsequently required to repair at least four fractures with metal rods in each bone. (16)On 1 September 2008, Mr. Thomas was transferred to Prince of Wales Private Hospital, Randwick for plastic surgery to the leg wound. A muscle was taken from under his arm and a skin graft from his upper right thigh for his lower right leg. He was discharged on 12 September 2008 to recuperate from home. CONTRAVENTIONS (17)UGM failed to ensure that Mr. Thomas, Mr. Redgrove and Mr. Hafey were provided with such information, instruction, training and supervision as was necessary to ensure their health and safety in carrying out the task of coupling together the longwall service cassettes/sleds. (18)The system of work adopted by the men was to couple together the cassettes/sleds as follows: (i)To manoeuvre the cassettes/sleds into position together where the coupling lugs were able to be aligned, Mr. Redgrove drove a large machine known in the mining industry generically as an LHD (for 'load-haul-dump') machine and in this particular case was called a 'Juganaut' machine. (ii)The Juganaut was not attached to the cassette/sleds but was driven by Mr. Redgrove so as to push the cassette/sled being moved into position. (iii)Mr. Thomas stood on one of the cassettes/sleds while the cassettes/sleds and coupling lugs were being pushed together. As the two cassettes/ sleds were coming together Mr Thomas lent down to lift the coupling lug and stepped off the casette/sled. (iv)Mr. Hafey was a spotter for the team. (19)The specific failures of the defendant are that: (i)The men did not receive such instructions from any person as to a safe method of doing the job, and such information or training as to the forces involved or risks to be avoided as was necessary. (ii)The men were not supervised by the defendant or Beltana as was necessary but were left to their own ad hoc devices, and as a result were put at risk of adopting an inadequate and dangerous system, which they did. (iii)The men did not receive instructions as to the requirement for a no-go area around the cassettes/sleds as the Juganaut was moving them into position for coupling together as was necessary. (20)UGM should have ensured that its employees were informed, instructed, trained and supervised as was necessary so that the the men adopted a system for bringing the cassettes/sleds together for coupling which did not require Mr. Thomas to be anywhere at all near the pinch point between them whilst they were being manoeuvred by the Juganaut - such as using a manual block and tackle for the final closure of the coupling lugs. (21)Further, UGM should have ensured that its employees were informed, instructed and trained as was necessary so as to be properly aware of at-risk positions and the need for no-go zones in relation to machinery-to-people interaction - and in relation to the particular task that Mr Thomas, Mr Redgrove and Mr Hafey were carrying out on 21 August 2008, as to the need to enforce an adequate no-go area around the cassettes/sleds as the Juganaut was moving them into position for coupling together. (22)UGM should have ensured that the men were supervised as was necessary by an experienced person so as to eliminate the risk that an inadequate and dangerous system would be adopted. (23)If it was not reasonably practicable because of cost, communication or time constraints for UGM, as a labour-hire company, to directly provide the necessary information, instruction, training and supervision of its employees, it should have ensured that the host employer, Beltana, did so. 5There was tendered into evidence on behalf of the defendant an affidavit of Peter Haynes, its Group Manager of Compliance, together with extensive documentation, much of which related to the defendant's commitment to occupational health and safety matters both before and after the incident. 6It will be readily ascertained from the charge brought against the company and from the agreed statement of facts that the defendant, as part of its business, was a labour hire company providing labour to the mining sector. The operations at the mine where the incident occurred were under the control of and were the responsibility of the mine operator, Beltana Highwall Mining Pty Ltd ("Beltana"). It was Beltana's equipment that was being used at the time of the incident. 7Before discussing in further detail the circumstances surrounding the incident, I set out s 8(1) of the Act, the provisions of which circumscribe these proceedings. 8 Duties of employers (1)Employees An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following, so far as is reasonably practicable,: (a)ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b)ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c)ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d)providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e)providing adequate facilities for the welfare of the employees at work. 8The background to the incident itself was that three employees of the defendant had been designated by Beltana to connect the three cassettes together to enable them to be used for mining activities. It will be seen from their dimensions that these cassettes are large. They do not have wheels and move in the manner of giant sleds, that is, by being pushed or pulled over the terrain on which they are situated. I was told during the course of the proceedings that the machinery which was being used to push the cassettes together so that they could be joined, called a Juganaut, is similar to equipment called Eimco. It was the evidence of Mr Haynes that Mr Thomas, the person who was injured in the incident, had been trained and was qualified to operate both the Juganaut and the Eimco. It may be inferred, therefore, that he would have some experience of what was involved in using the Juganuat to push the cassettes together so as to enable them to be joined. 9At the time of the incident, the Juganaut was being driven by Mr Scott Redgrove. In an interview with an inspector of the New South Wales Department of Trade and Investment, Regional Infrastructure and Services, Mr Redgrove described what happened at the time that he was pushing one cassette into position so that it could be adjoined to another. He described the "supercharged Juganauts" as having "enough power to start going themselves without hitting the accelerator too much." He said that he just "tapped the accelerator a bit" and it must have moved too fast and that is when the accident occurred. Mr Redgrove described the state of the road on which he was attempting to position the cassettes as being very flat and hard, as being like a "shiny flat surface" and that there was no friction so that it slid "very easy and very quick." 10Without wishing to unduly denigrate in any way the conduct of the three employees of the defendant at the time that the incident occurred, I would characterise the manner in which they attempted to perform the work, involving as it did Mr Thomas being physically very close to the coupling area, as being foolish. A very large piece of equipment was being physically manoeuvred by machinery, which was described as being like a front end loader, on a smooth surface with minimal friction and therefore easily moved, in circumstances where Mr Thomas could easily and foreseeably have been injured if something went wrong, as it did. 11With the benefit of hindsight, I am able to conclude that the procedure that the three employees undertook was one that was fraught with danger, and that the injury sustained by Mr Thomas was readily foreseeable. 12There are two other matters that need to be taken into account when considering the incident and especially when determining the objective seriousness of the offence, which is the starting point for the assessment of penalty. The first is that the persons concerned were all employed by the defendant and, under the Act, the defendant was bound to ensure a safe work environment for them, including obviously Mr Thomas. This duty extended, as the authorities clearly point out, to ensure a safe work environment in circumstances where employees may act foolishly, with lack of sufficient attention to what they are doing, and with lack of sufficient insight into any potentially dangerous situation. It is for employers to devise and create a safe work environment, not for employees to undertake such a task, albeit that there are certain obligations imposed on employees under the Act. However, the obligations imposed on the defendant by s 8(1) of the Act must be seen in the context in which the incident occurred, and this leads me to consider the second factor. The operation in which the three persons were involved was conducted by and solely under the control of Beltana. It was Beltana's equipment that was being used and Beltana's personnel who directed the employees to undertake the particular task in which they were involved at the time that the incident occurred. 13There are a number of authorities, including those at Full Bench level, in this Court that have considered proceedings initiated against defendants who operated labour hire businesses. It is clear that a labour hire company must take such steps as are available to it so as to enable it to comply with its obligations under s 8(1) of the Act. This will require it to inform itself of the place where the work is to be performed, the circumstances in which the work is to be performed, the adequacy of the approach to safety of the host employer, the competency, training and approach of the host employer's personnel to occupational health and safety matters, the use by the host employer of induction processes and other procedures and protocols which would enhance safety at the employee's place of work, the provision of instruction, training and supervision to persons performing the work, the adequacy and state of repair of any equipment, plant and structures being provided by the host employer, and the like. This is not intended to be an exhaustive list, but merely to give some indication as to the type of measures that a labour hire company would be expected to undertake in order to ensure compliance with s 8(1) of the Act in circumstances where employees are sent out to work for a host employer at a host employer's place of work. 14The evidence adduced in the proceedings, and particularly the documentation which is exhibited to the affidavit of Mr Haynes, is indicative that this defendant operated a substantial labour hire business specialising in the provision of personnel for mining operations being conducted by host employers. The business commenced in 1997 and has over 650 employees. Mr Haynes readily admitted that the work that was undertaken by employees that the defendant placed with its clients in mine sites could be "hazardous, in difficult geological conditions or in response to timing pressures. For this reason, the work performed by UGM employees is often difficult and UGM employees are often exposed to a range of hazards." 15In response to these circumstances, Mr Haynes said that the defendant took its occupational health and safety issues very seriously, had a large compliance department that oversaw and was responsible for the health and safety of its employees consisting of 25 experienced employees. 16I am satisfied that, prior to the incident, the defendant had in place a comprehensive and sophisticated occupational health and safety system, supplemented by policies and procedures that were intended to comply with its obligations under the Act and to demonstrate a proper and appropriate commitment to occupational health and safety matters. The prosecutor did not contend otherwise, save that there were certain deficiencies which were pointed out as applying prior to the incident, being those described in the particulars of the charge and in the agreed statement of facts. By its plea of guilty, the defendant has acknowledged those omissions. 17The specific failures alleged against the defendant are those set out in [4] of the amended application for order and the three subparagraphs, the provisions of which I have earlier set out. 18In response to the failure to provide adequate instructions, information and training, the defendant pointed to the evidence that it had in place a substantial induction and training program prior to the incident, and relied on evidence concerning this program as contained within the documentation which became evidence in the proceedings. 19In dealing with the failure to supervise the employees and in response to the allegation that they were "left to their own ad hoc devices", the defendant said that it had limited opportunity to supervise its employees at the site because the site was under the control and operation of Beltana. Furthermore, Beltana was clearly obliged under the Act and associated legislation to provide a safe work environment for persons other than its employees who were engaged in carrying out work at the mine site. In addition, these matters have to be seen within the context that the defendant had made enquiries of and satisfied itself as to the occupational health and safety systems policies and procedures used by Beltana in and about its operations. 20In response to the assertion that the defendant had failed to instruct the employees concerned about the creation of a "no go zone" around the particular area where the cassettes were being pushed together, the defendant conceded that specific written instructions would have alerted the employees concerned to the requirement to establish a "no go zone". On the other hand, part of the defendant's induction procedures warned employees from becoming complacent when working in proximity to mobile equipment. In addition, Mr Thomas conceded that there was a safer way in which the work could have been carried out. 21In an interview with Inspector Freeman of the New South Wales Department of Trade and Investment, Regional Infrastructure and Services, Mr Thomas was asked whether the coupling system that was being used when he was injured was a safe system or work. He said: Yeah. They've, it used properly it's safe. With different things, like, it, it's safe when it's used properly. Like there is safer ways of doing it, but you know, that's their system and you know, it, it, as I say, if it was used properly, you know, and in a different way than what we were doing at the time, it was safe. To me it was safe the way we were doing it, except, OK it wasn't safe for me, but to me, yeah, it's safe. 22The defendant submitted that it should not be overly penalised in circumstances where it could not reasonably have foreseen that its employees would have carried out the work in this particular manner at the time that the incident occurred. 23I should add for completeness that it was the evidence of Mr Haynes that after the incident the defendant renewed and improved its occupational health and safety procedures. The prosecutor accepted that this was the case, and the evidence clearly demonstrates it. One example is that since August 2008, the defendant has expended approximately $10 million in total training costs. 24It was the evidence of Mr Haynes that the defendant expressed contrition and remorse for the incident and for its acknowledged breach of s 8(1) of the Act. Mr Haynes also detailed the substantial support given by the defendant to Mr Thomas and to the other employees concerned following the incident. 25Finally, evidence was given by Mr Haynes concerning the communal and charitable involvement of the defendant and I am satisfied that it is a good corporate citizen. 26The prosecutor sought orders for the payment of costs and a moiety, neither of which was opposed by the defendant. However, the prosecutor also sought an order for the recovery of expenses under s 114 of the Act and I shall return to this later in these reasons for judgment. 27As I have said, the starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. I have already described in general terms the three principal elements that need to be considered when determining this matter and I have also referred to some of the evidentiary material that is relevant to each of them. 28The manner in which the three employees determined to carry out the work was foolish because there was an obvious and foreseeable risk of the cassette sliding and coming into contact with Mr Thomas who was standing in the immediate vicinity of where the two cassettes were to be joined. This dangerous operation was undertaken by the three employees at the direction of and under the control of Beltana, using equipment in the possession of and under the control of Beltana. Despite this, however, the defendant was obliged under s 8(1) of the Act, as acknowledged by its plea of guilty, to have given the employees concerned adequate instruction as to a safe method of doing the job, to have supervised them and in instructing them to have established a "no go zone" around the cassettes as one of them was being pushed toward the other. The particulars contained in the amended application for order specify that if the defendant was unable to undertake any of these particular matters itself, then it should have ensured that Beltana had provided the necessary information, instruction, training and supervision with a view to avoiding the incident occurring. 29In a submission, which I have found refreshingly helpful, the prosecutor suggested that the offence might be characterised as "on the low side of mid-range". The defendant submitted that the offence should be considered as being at the low end in the order of seriousness. 30Having regard to all of the evidence and the matters to which I have referred, and in particular the circumstances in which the incident occurred, I would characterise the seriousness of the offence as lying somewhere between low-range and mid-range. 31In determining penalty I shall take into account the general deterrent effect that any penalty imposed will have particularly in the mining and labour hire industries, and the specific deterrent effect on this defendant, albeit that this is ameliorated by the demonstrated commitment of the defendant to the discharge of its obligations under the Act. 32There are a number of subjective matters that the Court is entitled to take into account in favour of the defendant, which will have the effect in the aggregate of lessening the amount of the penalty to be imposed. The defendant pleaded guilty at the earliest opportunity, it has demonstrated contrition and remorse for what occurred, it co-operated with the prosecutor in and about the investigation of the incident, it has a good safety record with no prior convictions, and has demonstrated that it may be characterised as a good corporate citizen. 33The maximum penalty is $550,000. The defendant submitted that the Court should apply the provisions of s 10A of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms: 10A Conviction with no other penalty (1)A court that convicts an offender may dispose of the proceedings without imposing any other penalty. (2)Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender. 34Section 10A is intended to apply to circumstances where, although a conviction is justified, there are particular reasons why no penalty should be imposed. See, for example, Howie J in the Supreme Court of New South Wales in R v Wilhelm [2010] NSWSC 378 at [36] and following. The section was inserted into that Act to overcome circumstances where a Court would feel disposed to impose a nominal penalty only. See Boland J in Inspector Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138 at [48]. 35Because I have determined that the objective seriousness of the offence lies between low level and mid level, it is not appropriate that I apply the provisions of s 10A of that Act in favour of the defendant. The offence justifies more than the imposition of a nominal penalty. 36The prosecutor sought an order under s 114 of the Act for the payment of costs and expenses in relation to the investigation of the offence, being an amount of approximately $1,900 to cover the transcription costs of witnesses and to carry out a number of ASIC searches. 37Section 114 is in the following terms: 114 Orders regarding costs and expenses of investigation (1)The court may, if it appears to the court that WorkCover has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to WorkCover the costs and expenses so incurred in such amount as is fixed by the order. (2)An order made by the Industrial Relations Commission under this section is enforceable under section 182 of the Industrial Relations Act 1996. An order made by the Local Court under this section is enforceable as if it were an order made by the Local Court when exercising jurisdiction under the Civil Procedure Act 2005. (3)In this section: costs and expenses , in relation to the investigation of an offence, means the costs and expenses in conducting any examination or test of anything during the investigation of the offence. 38In support of the application for this order, the prosecutor directed me to two previous decisions in this Court. The first was Morrison v Liddell Coal Preparation Pty Ltd [2011] NSWIRComm 46. In those proceedings, Staff J ordered that the sum of $23,090, representing costs arising from the investigation of the offence, be paid by the defendant to the prosecutor. However, such an order was made by consent and there was no discussion by his Honour of any of the principles that would support the making of such an order. 39The second case is Robert William Regan v Perilya Broken Hill Limited [2011] NSWIRComm 13, a judgment of Backman J. In those proceedings, her Honour ordered the defendant to pay to the prosecutor $5,974.80 "being the reasonable costs of the investigation." In my perusal of her Honour's judgment, I am unable to find any reference to s 114 of the Act, or to the circumstances considered by her Honour in determining that that amount should be paid. Perhaps, as was the case with the earlier judgment of Staff J, this was a matter of consent, but if so there appears to be no mention of it in her Honour's judgment. 40The concern that I have in acceding to the prosecutor's request in the context of these proceedings is that the prosecutor also seeks a moiety of any penalty imposed. The entitlement to a moiety is not opposed by the defendant. However, I am concerned to ensure that there is no double counting in ordering both the payment of a moiety and the reimbursement sought of expenses incurred in the sum of $1,900. 41There can be no doubt that under s 114, the Court is empowered to order the payment of costs if, in the case of these proceedings the prosecutor has reasonably incurred costs and expenses during the investigation of the offence. These are said to be costs and expenses "in conducting any examination or test of anything during the investigation of the offence" as provided for in s 114(3). 42It occurs to me in reading the provisions of s 114(3) that there may be some ambiguity as to what is intended by the words "conducting any examination or test of anything ...". The subsection may be read as referring to the conduct of any examination, presumably of any kind and any test of anything. Alternatively, the words used may be read as referring to any examination or test of anything, as opposed to anyone. In view of the conclusion which I intend reaching about this matter, I have not found it necessary to seek further submissions from the parties about whether there is, indeed, any ambiguity and about the proper approach to construction of this subsection. 43The circumstances in which a moiety of a penalty would be ordered to be paid were considered in some detail by Boland J in this Court in Geoff Derrick v ANZ Group Limited (No 2) [2005] NSWIRComm 145. His Honour referred at [4] to the legislative history of the awarding of a moiety and the practice of this Court and its predecessor. The earlier authorities to which his Honour refers indicate that a moiety was awarded in recognition of the interests of an entity part of whose function it was to prosecute offences under the Act and its predecessor. There is a reference to the "important functions" of the WorkCover Authority of New South Wales. Furthermore, at [13] Boland J extracted a portion of the judgment of Haylen J in Coombs v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56. In those proceedings, Haylen J was satisfied that it was appropriate to order the payment of a moiety to a prosecutor who was the secretary of a federally registered trade union because of the work undertaken by the trade union in connection with occupational health and safety matters. There are references in Boland J's judgment to many other authorities of this Court along similar lines. 44In the context of proceedings instituted by a prosecuting authority such as the WorkCover Authority of New South Wales or, in the case of these proceedings, the New South Wales Department of Trade and Investment, Regional Infrastructure and Services, my understanding of the principles established by the Court is that a moiety is justified because of the important work that is undertaken by these prosecuting authorities and as a means of subsidising the expenses incurred by them in doing so. I would have thought that this justification would accommodate the expenses of the investigation of a matter including the conducting of interviews with witnesses and carrying out ASIC searches. Although there is specific provision for the making of orders regarding the costs and expenses of investigation as contained within s 114, there is also some element of double counting when one takes into account the purpose for which a moiety of a penalty is ordered. In these circumstances, I decline to make any order under s 114 in favour of the prosecutor in the sum of $1,900 to cover the costs of transcribing interviews with witnesses and for conducting ASIC searches. 45The maximum penalty is $550,000. Having regard to all of the matters to which I have earlier referred, including my assessment of the objective seriousness of the offence, the need to provide for both general and specific deterrence, but taking into account all of the subjective matters in favour of the defendant, I am of the opinion that an appropriate penalty is the sum of $55,000.