Rodney Morrison v Powercoal Pty Ltd

APPELLANT: Mr R Reitano of counsel Solicitor: Ms F Inverarity PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: RESPONDENT: Mr P Kite SC with Mr P J Nolan of counsel Solicitor: Ms K Wilding Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Matter No IRC 6941 of 2002 RODNEY MORRISON v POWERCOAL PTY LTD

Application by WorkCover Authority of New South Wales for an appeal against a decision of Justice Schmidt given on 18 November 2002 in Matter No IRC 4399 of 2001 JUDGMENT OF THE COURT [2003] NSWIRComm 416

1 This matter concerns an appeal by Rodney Morrison (the "appellant"), pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912, against the judgment of Schmidt J in sentencing proceedings involving the respondent, Powercoal Pty Limited in Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298.

2 On 1 July 1999, Christopher Elliott, an employee of the defendant, was fatally injured when his legs were crushed during installation work on a continuous mining machine in a mine operated by the defendant near Lake Macquarie in the State. Another employee, Colin Bradley, narrowly escaped injury. The defendant pleaded guilty to a charge under s 15(1) of the Occupational Health and Safety Act 1983 that it failed to ensure the health, safety and welfare at work of all of its employees, in particular Christopher Elliott and Colin Bradley.

3 Schmidt J determined an appropriate penalty to be $100,000. This amount was discounted by 35 per cent, leaving a fine of $65,000 with a moiety to the prosecutor. The appellant appeals against the inadequacy of the sentence.

4 Schmidt J referred to an agreed statement of facts that was in the following terms: 1. At all material times Christopher Elliott and Colin Bradley were employees of Powercoal Pty Limited ("Powercoal"). 2. At all material times Christopher Allen was an employee of Waratah Engineering Pty Limited ("Waratah Engineering") 3. At all material times Powercoal was a body corporate. 4. At all material times Rodney Morrison was authorised to commence prosecutions under the Occupational Health and Safety Act and this prosecution was commenced pursuant to that authorisation. 5. At all material times Powercoal operated an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coal mine was and is known as Cooranbong Colliery ("Cooranbong Colliery"). 6. On 1 July 1999 at or about 11.45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel. 7. Prior to 11.45pm on 1 July 1999 Christopher Elliott was assisting in the installation of a conveyor boom onto a Joy 12 CM 12 (No CM04) Continuous Mining Machine ("the Continuous Miner"). 8. Prior to 11.45pm on 1 July 1999 Colin Bradley and Doug Jones who were both employees of Powercoal were also assisting in the installation of the conveyer boom to the Continuous Miner. 9. At all material times Christopher Allen was the service technician employed by Waratah Engineering to work upon the maintenance and assist in the installation of the conveyor boom. 10. The Continuous Miner was owned by Waratah Hire Pty Ltd ("Waratah Hire") and had been hired by Powercoal pursuant to a hire contract for the purposes of producing coal. Waratah Hire engaged Waratah Engineering to service the Continuous Miner. 11. At all material times Waratah Engineering employed service technicians who were required to service mining and other equipment (such as the Continuous Miner) for Waratah Hire and others. Waratah Engineering owned and operated a workshop for that purpose and also sent its technicians to mine sites to work on mining equipment. 12. On 30 June 1999 the Continuous Miner sustained damage to the conveyer boom main hinge points. 13. A Mr Gluszek from Waratah Hire and Christopher Allen went to Cooranbong Colliery on 30 June 1999 and inspected the Continuous Miner. It was observed that the pivot tubes had broken out, that there were some fractured brushes and some other damage to the Continuous Miner. 14. Christopher Allen removed the conveyer boom from the Continuous Miner and it was taken to Waratah Engineering's workshop for repairs. 15. On 1 July 1999 Christopher Allen was asked to go to Cooranbong Colliery to assist in the installation of the conveyer boom on the Continuous Miner. 16. The installation of the conveyer boom onto the Continuous Miner had commenced during the afternoon shift on 1 July 1999 but had not been completed. The night shift crew comprising of Christopher Elliott, Colin Bradley, Doug Jones and Christopher Allen were all required to complete the installation and specifically were required to connect the boom lift cylinders to the boom and reconnect the conveyer chain. 17. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous Miner was lowered. 18. Whilst the Continuous Miner's power was off, but not isolated at all and whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position. 19. During the installation the left hand boom lift cylinder ram was found by Christopher Elliott to be too tight to extend by hand to align with the top clevis. It was therefore decided to drive the ram out by using the Continuous Miners hydraulics by turning the Continuous Miner's power on. 20. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left hand side of the stabiliser jack foot and held the said foot in position with his own foot. 21. Prior to powering up the Continuous Miner Christopher Elliott remained in the space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position. 22. Christopher Elliott then requested Douglas Jones to start the Continuous Miner's power. 23. Douglas Jones started the Continuous Miner's power with a remote radio controller the effect of which was to cause the stabilizer jack to be raised although not fully from its lowered position. This caused both of Christopher Elliott's legs to be trapped between the stabilizer jack and the underside of the Continuous Miner. 24. The Continuous Miner was immediately shut down using the remote control. Christopher Elliot's legs remained trapped. The Continuous Miner was then restarted so as to release Christopher Elliott's legs by use of the remote control whilst holding the stabiliser jack toggle in the down position. This did not override the automatic retraction of the stabilizer jack which then retracted to the full up position. The effect of this was to further crush Christopher Elliott's legs. 25. Colin Bradley was able to remove his right leg from its position between the stabilizer jack and the main frame of the Continuous Miner before the stabilizer jack first started to retract. 26. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein ultimately causing his death. 27. At all material times the stabiliser jack of the Continuous Miner automatically retracted upon the hydraulic pump on the Continuous Miner being started. It was not necessary for the operator to activate the stabilizer jack for it to retract. Further, the retraction of the stabilizer jack could not be defeated by the operator using the remote radio transmitter. 28. Powercoal had Isolation Procedures (GWP005) and Continuous Miner Operating Procedures (SWP002). These procedures were not applied on the night of 1 July 1999. These procedures did not specifically deal with the work that was being performed on 1 July 1999. 29. Powercoal did not provide any information, instruction or training to Colin Bradley or Christopher Elliott in the installation of the conveyor boom and in particular: (a) that the stabilizer jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley and Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; (d) at no time during the replacement of the boom were any of the persons present allocated to act as supervisor. 30. In the report of Inspector Conlon, District Inspector of Coal Mines, he said: "an amended safe working procedure for removal and replacement of a conveyor boom on 12CM12 continuous miners has been formulated. Retraining of the workforce in the new procedures has been undertaken." 31. Powercoal has no prior convictions under the Occupational Health and Safety Act 1983.

5 Schmidt J concluded that the breach in question was a serious one. At pars [31] and [32] of her judgment her Honour stated: 31 The evidence showed that there was a deficiency in the training provided in the work here in question. The employees were seemingly not aware of the automatic retraction of the jack and its serious consequences, were the machine to be turned on, while they were performing the maintenance work they were engaged on. Nor did they appreciate that this automatic retraction could not be overridden by use of the remote control. 32 The evidence did not leave open to doubt that the applicable isolation procedures, if they had been implemented, would have precluded the accident occurring. Whether the direction given by Mr Elliott to start the machine resulted from a misunderstanding of the document in question, which applied to this work, as Mr Myors conceded was possible, or for some other reason, cannot be determined on the evidence. That the work being undertaken had been performed on many occasions beforehand, without incident cannot be overlooked. As I have found on the evidence, that record cannot have resulted from mere good fortune. While account must also be taken of the fact that neither of the two fitters who had been trained and delegated the function of performing and supervising this type of work, had in fact been designated the supervisor of the particular job being performed, it is also relevant that they had that capacity, and it was employees with such training who were amongst those performing the work. It was one of those fitters who gave the direction for the machine to be switched on, apparently without demur by the defendant's other employees or by Mr Allen, who was also present. A portable power pack was available and its use would have precluded this tragedy occurring. Once again, the evidence showed that a simple and available measure, if taken, would have precluded a serious and readily foreseeable risk to safety arising.

6 In determining the quantum of sentence, her Honour reached the following conclusions at pars [34] to [37]: 34 The parties were at considerable odds as to the penalty which would properly flow from the evidence as to the nature of this offence. While I am well satisfied that a substantial penalty must be imposed, I am unable to accept the prosecutor's submission that the circumstances must lead to the imposition of a high range penalty. In my view, a penalty of the kind proposed would be inconsistent with both the evidence in this case and the approach which the Court has taken in other cases involving a plea to a first, albeit serious, offence where the gravity of the consequences of the offence has been of the worst kind, namely a death has occurred. While it is not easy in prosecutions brought under the Act for comparisons to be readily drawn between the circumstances of different offences, the approach adopted in cases such as Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; WorkCover Authority of New South Wales (Inspector Dunlop) v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; WorkCover Authority of New South Wales (Inspector Sharpin) v Christie Civil Contracting Pty Ltd [2002] NSWIRComm 209; WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163; WorkCover Authority of New South Wales (Inspector Buggy) v P&O Ports Ltd [2000] NSWIRComm 249; WorkCover Authority of New South Wales (Inspector Sharpin) v Bovis McLachlan Pty Ltd [2002] NSWIRComm 210 and WorkCover Authority of New South Wales (Inspector Robins) v Katoomba Scenic Railway [1998] NSWIRComm 308 (30 June 1998), are pertinent and support the conclusion which I have reached about the appropriate range of the penalty to be imposed in this case. 35 While the sentencing process commences with a consideration of the nature and quality of the offence revealed on the evidence, it is also well settled that the task of the Court in fixing penalty, is to assess the relative seriousness of the offender's particular offence, in relation to a worst case for which the maximum penalty is provided. I am satisfied, having regard to the nature and quality of the offence, the gravity of the potential risk to safety flowing from this offence and the evidence which threw light on the defendant's culpability, that such an approach in this case could not properly lead to the imposition of a high range penalty. In arriving at the appropriate penalty, account must also be taken of the defendant's record, as well as the other matters properly raised in mitigation. 36 As to record, I am satisfied on the evidence that this defendant's record did not result as a matter of luck, but rather from the real attention it had paid to safety at this workplace prior to this accident, in a proactive, not merely a reactive way. The existence of a safety system, which would have prevented the accident, if adhered to, must also be taken into account. Given the nature of the detriment to safety here in question, I do however accept that elements of both general and specific deterrence must feature in the penalty imposed and have taken this into account in fixing penalty. 37 I turn then to the question of any discount. I am satisfied that this was an early plea, entered as soon as the prosecutor had amended the application for the orders it sought in these proceedings and sought the dismissal of the two other prosecutions under the Act which had been brought against the defendant, arising out of the same circumstances. I am satisfied that the discount appropriate to be applied in these circumstances, having regard to utilitarian savings and contrition, is a total of 35%. In this latter regard, it is appropriate that I take into account the very considerable action taken by the defendant in response to the risk to safety, which the accident had exposed. In an environment where there had already been serious attention paid to safety matters generally, the detailed step by step instructions and check lists introduced by the defendant for complex maintenance work, together with a new instruction and approval process and enhanced safety audit procedures were commendable and properly now to be taken into account in fixing penalty.

7 Mr R Reitano of counsel for the appellant submitted that the Full Bench should intervene on the following grounds:

1. The sentence imposed by her Honour was in all the circumstances manifestly inadequate.

2. The sentence imposed by her Honour failed to give any or any appropriate weight to the nature and seriousness of the offence having regard in particular to the facts that the risk to which the employees were exposed was specifically known and identified by the defendant, the steps available to the defendant to ensure the safety of its employees were simple and readily available and the detriment to safety was one that could have involved the death of two employees.

8 As to the nature of the appeal, the appellant submitted that the appeal was as of right and in order to succeed in the appeal, appealable error of the kind referred to in House v The King (1936) 55 CLR 499 must be demonstrated.

9 It was submitted that the inadequacy of the penalty, on its face, demonstrated relevant and appealable error. The appellant relied on his submissions before Schmidt J to support his contention that the offence fell within the high range of offences coming before the Commission.

10 The appellant noted that both parties agreed the offence was a serious one and this characterisation was accepted by her Honour. In light of this, the appellant submitted that it was unclear and relatively unexplained why her Honour put the offence at the lower end of the range.

11 Mr Reitano submitted there were a number of objective features in the case that called for a substantial penalty, in particular:

The maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed was $550,000 (and $825,000 for a second offence);

The known and identified risk to which the workers in question were exposed;

The serious consequences that inevitably (and did) flow from exposing employees to the risk in question - that is the risk of death;

The simple and straightforward remedial steps that were available to the defendant to ensure against the risk, which were known at that time but not taken but which were taken after the offence; and

The numerous failings relating to safety disclosed by the particulars.

12 It was submitted that in determining the penalty to be imposed, her Honour appears to have been distracted from assessing the nature and quality of the offence by three significant matters, namely:

1. A pre-occupation with the fact of the defendant's record and whether it flowed from good fortune or otherwise. The appellant submitted that such speculation was of little or no probative value in the assessment of the nature and quality of the offence;

2. The confusion of considerations concerning nature and quality of the offence with matters relevant to the defendant's record; and

3. Other cases in which low range penalties had (historically) been imposed which had peculiar or distinguishing features or where such sentences imposed concerned offences where lesser maximum penalties were prescribed.

13 As to the third contention, the appellant submitted that the cases referred to by her Honour at [34] were distinguishable on various grounds. For example, the increase in maximum penalties brought about by the 1996 amendments to the Act were not applicable in: Alcatel Australia Ltd v Workcover Authority of New South Wales; Workcover Authority of New South Wales v Albury City Council; and, Workcover Authority of New South Wales v Katoomba Scenic Railway Pty Ltd. In Workcover Authority of New South Wales v Robert Shone Construction Pty Ltd, the defendant was a small family company where the fine would essentially be borne by the proprietors and this consideration justified a "fine substantially less than would otherwise be imposed" (at [23]).

14 The appellant submitted that whether an offence is a first offence or not has no relevance to the objectively assessed nature and quality of the offence. Further, that other members of the Commission have not adopted an approach of applying low range penalties to first offences: see for example Workcover Authority of NSW (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170 and Inspector Robert Littley v Rick Damelian Pty Ltd [2003] NSWIRComm 121.

15 Mr Reitano contended that serious offences involving exposure to the risk of death where obvious steps could be taken to ensure against the risk have in recent years generally (and save for exceptional circumstances) attracted fines far in excess of that imposed by her Honour: see, for example, Inspector Howard v Multiplex Constructions (NSW) Pty Limited [2002] NSWIRComm 229; Inspector May v McDonalds Australia Limited [2002] NSWIRComm 179; and, Inspector Belley v Rail Infrastructure Corporation [2001] NSWIRComm 323.

16 Mr P Kite SC for the respondent agreed with the appellant's characterisation of the nature of the appeal. It was submitted, however, that her Honour did not commit any appealable error of the kind referred to in House v The King. That is, her Honour correctly applied the law, took relevant matters into account and was not mistaken as to the facts. The respondent further submitted that the principles to be applied in this appeal were those adopted by the Full Court in WorkCover Authority of New South Wales v Waugh & Anor (1995) 59 IR 89, 94-95 That is, the appeal is from a discretionary act of the court and the exercise of the appeal court's jurisdiction must be done in accordance with the recognised principles.

17 Mr Kite submitted the following factors supported the penalty imposed:

1. Her Honour's finding that there was a safety system in place that, if adhered to, would have prevented the accident ever occurring was an important one in its favour. This finding is beyond challenge.

2. The respondent has an exemplary safety record over a considerable period of time. It operates in an industry known for its inherent risks to health and safety. Further, the respondent had in place at the time of the subject accident numerous systems and procedures to comply with its obligations under the Act.

3. Her Honour's recognition of the experience of the crew at the time of the subject accident and that they were adequately trained.

18 The respondent referred to the cases submitted by the appellant as examples of high range penalties imposed for first offences and contended these were distinguishable from the current matter as they involved greater departures from safe working practice that were classified by the trial judges as being "most serious" or "worst case category" and in some cases, such as Inspector Victor Larobina v Fan Electrics (NSW) Pty Ltd [2002] NSWIRComm 230, there was no appropriate system and procedures at all.

19 The respondent submitted that there was a danger that a court could easily fall into error if too much weight is given to comparing similar cases and proceedings and in imposing similar penalties on that basis alone without having close regard to the objective and subjective elements of each case.

20 Mr Kite provided an account of what he submitted were the relevant facts in the cases referred to by her Honour at [34] as supporting her conclusion on the appropriate range of the penalty to be imposed in this case. It was submitted that the penalties imposed in those cases show that her Honour's order in the current matter was not manifestly inadequate and was within her Honour's discretion on the facts as found.

21 The respondent referred to the comments of Peterson J at first instance in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (1999) 90 IR 119 at 121: It is true that the employee was not under supervision but as I have observed, constant supervision of a properly qualified employee, who has adequate training in the context of a system which is designed to be and is accepted to be, if properly applied, a safe system, cannot be constant. There is, in my view, no subjective element in this case which would warrant the imposition of a penalty. The only objective feature which requires consideration is the notion of the imposition of a penalty to act as a general deterrent. While that is an obvious feature of assessment of penalty in cases generally, there seems to be little justification for applying that consideration alone to the defendant in this case. The defendant's performance has in general been an exemplar of the sort of the approach which employers, particularly in the building industry, should take to employee safety.

22 The respondent "embraced" the above comments along with the following statements of the Full Bench in the decision on appeal, WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; (2000) 100 IR 64 at [46]: 46 We consider a penalty should be imposed in this matter and have given due weight to all the subjective considerations upon which the respondent is entitled to rely, as referred to in his Honour's judgment and the respondent's submissions on appeal. In particular, regard has been had to the nature of the respondent and of the industry in which it operates, its good record of industrial citizenship and safety and its pro-active approach to safety in an industry which is not always known for its safety consciousness. Appropriate weight should be given to the respondent's early plea of guilt, and the consideration of double jeopardy. Also, as earlier indicated, we have approached this matter in terms of the objective seriousness of the offence on a view of the facts most favourable to the respondent. In all those circumstances, we consider the fine that should be imposed upon the respondent is $50,000.

23 The respondent provided a review of the cases the appellant referred to in its submissions as examples of where serious offences have attracted fines far in excess of that imposed by her Honour, and submitted that the features of the offences distinguish them and dilute the usefulness of them as precedent on the issue of penalty. Further, the respondent noted that none of the authorities relied upon by the appellant involve prosecutions in the mining industry.

24 Mr Kite submitted that the principle of double jeopardy was a relevant consideration in a prosecution appeal from penalty imposed against a corporation: WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392, Everett v The Queen (1994) 181 CLR 295, 299 and WorkCover Authority of New South (Inspector Hopkins) v Profab Industries Pty Ltd.

25 Mr Reitano submitted that her Honour's finding that there was a safety system in place which, if adhered to, would have prevented the accident ever occurring, illustrates the error in her Honour's approach. The appellant submitted that having a safe system, about which the employees were told nothing, and in which they were not trained made the offence a far more egregious one, particularly as an inference could be drawn that the risk was known. On the issue of training, her Honour took into account "…the defendant's failure to train the employees in the interaction of the miner and the operation of the remote control device." The appellant submitted that this approach was erroneous as the particulars to the charge in relation to training were wider and included the defendant's failure to train employees in the stabiliser jack's automatic retraction feature being one that operated when the power of the continuous miner was activated, providing instructions in the method to be adopted when the boom lift jacks were to be attached to the boom and the relevant use of isolation procedures when reinstalling the conveyer boom to the continuous miner.

26 The appellant relied on the authority of Griffiths v R (1977) 137 CLR 293 for the proposition that where the sentence imposed is outside the range of penalties that might have been imposed, the sentence was therefore, prima facie, one that demonstrated error.

27 Mr Reitano submitted that the authorities referred to in his submissions were not intended to provide any factual matrix against which the seriousness of the offences in the instant case was to be measured but were intended to demonstrate where the appropriate range of penalty in this matter would lay.

28 It was submitted that comparisons as to factual circumstances in different cases, and distinctions between those cases, did little to assist in the resolution of the issue in the present case. Further, that it was the overall level of culpability and objective seriousness of the offence that needed to be assessed. The appellant submitted that the important facts of this case were that the risk was of a grave and serious nature, it was known to the defendant, there was no safe working practice in relation to the work that was being undertaken on 1 July 1999 and the way in which the work was being undertaken on the day was inherently unsafe. Mr Reitano contended that these objective circumstances pointed to the need to impose a substantial penalty falling within the high range of penalties imposed by the Commission and her Honour erred in placing the offence in the lower range.

29 The approach to be taken on prosecution appeals against sentence was recently considered by a Full Bench in Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at [45] to [55]. The Full Bench in that case observed that: · Although under s 5D of the Criminal Appeal Act, leave to appeal is not required, any re-examination of penalty must be approached with caution: Inspector Ian Batty v Graincorp Operations Limited [2002] NSWIRComm 49 at [4].

· Generally speaking, an appellate court must identify a clear and demonstrable error at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340 - 341 (Kirby J) and 330 (Gummow and Gaudron JJ); Wong v R (2001) 185 ALR 233 at 263; Batty v Graincorp at [4]; and, Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319 at [6].

· It is apparent from the discussion of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325 that there is a distinction between specified material error in the sentencing judge's approach or reasoning (House v The King error) and error on the face of the judgment demonstrated by the sentencing judge's conclusion, such as a manifestly inadequate or excessive sentence.

· The identification of either type of error is sufficient to enable intervention by an appellate court. The appellate court is not required to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 402. However, an appellate court in a Crown appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the Court's overriding discretion not to intervene.

· It is well established that an appellate court in re-sentencing, or deciding whether to re-sentence an offender, should have regard to the principle of double jeopardy. The application of the principle of double jeopardy provides for an imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance (R v Allpass (1993) 72 A Crim R 561 at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700.

31 The incident that led to the prosecution of the respondent involved the death of an employee and, it would appear from the evidence, a narrow escape from at least serious injury by another employee. Under s 15 of the Occupational Health and Safety Act, however, death or serious injury arising out of an industrial accident will not necessarily attract a higher penalty than if no death or serious injury occurred. As the Full Court of the Industrial Court of New South Wales observed in Haynes v C I & D Manufacturing Pty Limited (1995) 60 IR 149 at 158-159, The general duties created by the OHS Act such as in ss 15 and 16 are clearly directed, we think, at obviating "risks" to safety in the workplace …

32 In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

33 Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case.

34 In the present case, in considering whether Schmidt J failed to give any, or any appropriate, weight to the objective nature and seriousness of the offence and whether the sentence was manifestly inadequate, there are a number of critical considerations in our opinion: 1. Powercoal had extensive safety procedures in place including in relation to maintenance work to be carried out on continuous miners. There was a general direction in place and one known and understood by Messrs Elliott and Bradley that, prior to any maintenance work being carried out on a continuous miner, the machine was required to be isolated from its power source. 2. Messrs Elliot and Bradley were experienced mechanical fitters appointed under the relevant Regulations to work underground unsupervised and to supervise and effect proper isolation, examination, testing and maintenance of all mechanical apparatus at the mine. However, it was conceded by the defendant that the particular written instructions applying to the isolation of machinery could have been misunderstood by Messrs Bradley and Elliott as permitting the operation of the continuous miner, to raise the hydraulic cylinders, rather than requiring the use of an independent power source to achieve that effect. 3. Powercoal was aware, prior to the accident on 1 July 1999, that the stabiliser jack would automatically retract when the power to the continuous miner was activated and that this presented a risk to health and safety. 4. It was agreed between the prosecutor and the defendant at first instance that: Powercoal did not provide any information, instruction or training to Colin Bradley or Christopher Elliott in the installation of the conveyor boom and in particular: (a) that the stabiliser jack would automatically retract when the power to the Continuous Miner was activated; (b) that no instructions were given to Colin Bradley and Christopher Elliott about the method to be adopted to attach the boom lift jacks to the boom; (c) that Colin Bradley and Christopher Elliott were not provided with any information, instruction or training on the need to ensure that the machine was isolated when reinstalling the conveyor boom to the Continuous Miner; (d) at no time during the replacement of the boom were any of the persons present allocated to act as supervisor.

35 It may be seen from this analysis that there was a gap in the respondent's system of safety management that ultimately proved to have tragic consequences. The defendant did require the machine to be isolated before work was carried out on it but conceded Messrs Elliott and Bradley could have misunderstood this requirement. This was against the background that the respondent knew the stabiliser jack would automatically retract when the power to the continuous miner was activated and that this presented a risk to health and safety. Further, that Messrs Bradley and Elliott had not been provided with any information, instruction or training in the installation of the conveyor boom on the continuous miner including that the stabiliser jack would automatically retract when the power to the continuous miner was activated.

36 Following the accident the respondent introduced step-by-step procedures, including a checklist to be followed for particular types of complex maintenance tasks that highlighted the necessity to use portable hydraulic power packs in the circumstances of the work undertaken by Messrs Elliott and Bradley while the machine at all times remained isolated from its electrical power source.

37 Having regard to all of the circumstances including those mitigating factors referred to in her Honour's judgment, the failure by the respondent to provide Messrs Elliott and Bradley with any information, instruction or training in the installation of the conveyor boom on the continuous miner, including that the stabiliser jack would automatically retract when the power to the continuous miner was activated, produced a serious risk to health and safety. That risk was manifested by the death of Mr Elliott and the narrow escape from injury or death of Mr Bradley. We do not consider that Schmidt J gave sufficient weight to this failure, which represented a fundamental - but easily remedied - lapse on the part of the respondent in its approach to the management of safety at its workplace in circumstances where it is required under the statute to ensure safety. If the respondent had passed on to Messrs Elliott and Bradley the knowledge it possessed about the dangers associated with activating the power to the continuous miner and the effect that would have on the stabiliser jack the risk would have been avoided. To that extent we consider her Honour erred.

38 We consider that the appeal should be upheld. It remains to determine an appropriate penalty. We consider that the nature and quality of the offence was such that it should have attracted a more substantial penalty. As to the subjective factors we note that there was no challenge on appeal to her Honour's assessment of these factors. In this respect Schmidt J applied a discount of 35 per cent and we propose to apply such discount. We have also necessarily had regard to the principle of double jeopardy. As we noted earlier, the application of this principle provides for the imposition of a sentence that is somewhat less than the sentence the appellate court considers should have been imposed at first instance or it should be at the lower range of available sentences. We determine that a combination of those factors warrants a penalty of $155,000, noting that the maximum penalty is $550,000.

39 We order: 1. The appeal is upheld. 2. The penalty imposed by Schmidt J on 18 November 2002 in Matter No 4399 of 2001 is quashed. 3. In lieu thereof, the respondent is fined the sum of $155,000 with a moiety of such fine to be paid to the appellant. 4. The appellant shall have its costs of the appeal as agreed, or in default, as assessed.

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