Rodney Morrison v Waratah Engineering Pty Ltd

CATCHWORDS: Occupational Health and Safety Act 1983 - Judgment as to penalties for s15(1) and s16(1) offences - plea of guilty entered - appeal `penalties manifestly inadequate - two employers on site, other employer assumes control of site and dictates system of work - adopted system created risk - defendant's system avoided risk - failure to properly instruct and train in single system - seriousness of offence assessed by respondent's actual contribution to the relevant risk - not a question as to apportionment of penalty - question of double jeopardy and parity - penalty found manifestly inadequate

Industrial Relations Act 1996 LEGISLATION CITED: Criminal Appeal Act 1912 Occupational Health and Safety Act 1983

Cranssen v King (1996) 55 CLR 509 Dept of Education & Training v Keenan (2001) 105 IR 181 Dinsdale v R (2000) 202 CLR 321 Griffith v King (1977) 137 CLR 293 Insp Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 Insp Downie v Menzies Property Services Pty Ltd [2004] NSWIRComm 259 Insp Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 Norbis v Norbis (1986) 161 CLR 513 Pearce v King (1998) 194 CLR 610 CASES CITED: R v King [2004] NSWCCA 444 Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Whittaker v King (1928) 41 CLR 230 WorkCover Authority of NSW (Insp Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34 WorkCover Authority of NSW (Insp Mansell) v Jian Chen and Obing Pty Limited t/as Old But New [2004] NSWIRComm 247 WorkCover Authority of NSW (Insp Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of NSW (Insp Farrell) v Morrison (No. 2) (2002) 112 IR 312 WorkCover Authority of NSW (Insp Mansell) v Robert Josef [2004] NSWIRComm 323 WorkCover v Transfield (No 2) (2001) 110 IR 160

Appellant: Mr R. Reitano of counsel Solicitors: PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: Respondent: Mr R.J. Buchanan QC with Ms T.E. McDonald of counsel Solicitors: Curwood & Partners

• 30 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J, Vice-President Kavanagh J Boland J DATE : 15 March 2005

MATTER NO. IRC2017 of 2004 RODNEY MORRISON v WARATAH ENGINEERING PTY LIMITED Application by Rodney Morrison for an appeal against a judgment of Justice Schmidt given on 19.3.2004 in matter Nos IRC4396 of 2001 and IRC4401 of 2001 JUDGMENT OF THE COURT [2005] NSWIRComm 63

1 This matter involves an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 from a judgment of Schmidt J of 19 March 2004 in Rodney Morrison v Waratah Engineering Pty Limited [2004] NSWIRComm38. In that matter, Waratah Engineering Pty Limited, the respondent in these proceedings, was prosecuted under ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983 ("the Act") following a fatal accident which occurred on 1 July 1999.

2 The respondent conducts an engineering maintenance business and in July 1999 was engaged by Powercoal Pty Limited ("Powercoal") to service mining and other equipment including machines known as "continuous miners". On 1 July 1999, Mr Christopher Allen, an employee of the respondent, was assisting Powercoal employees to install a repaired conveyor boom onto a continuous miner underground at Cooranbong Colliery, a coal mine operated by Powercoal ("the Cooranbong Mine"). During the installation procedures, power to the continuous miner was turned on and Mr Christopher Elliott, a Powercoal employee, suffered a fatal injury.

3 Her Honour considered two charges, one brought under s 15(1) and the other under s 16(1) of the Act: In matter number IRC 4401 of 2001, it was alleged the respondent failed to ensure the health, safety and welfare at work of all its employees, in particular Christopher Allen, contrary to section 15(1) of the Occupational Health and Safety Act 1983.

In matter number IRC 4396 of 2001, it was alleged the respondent failed to ensure that persons not in its employment, in particular Christopher Elliot and Colin Bradley, who were present at its place of work were not exposed to risks to their health or safety arising from its undertaking contrary to s16(1) of the Occupational Health and Safety Act 1983. 4 The particulars of the s 15(1) charge alleged a failure by the respondent to properly inform, instruct and train employees in relation to the maintenance and installation of conveyor booms onto the continuous miner. The particulars of the s 16(1) charge alleged a failure by the respondent to provide such information and instruction as may be necessary to other persons carrying out maintenance and installation work on the continuous miner.

6 Her Honour determined an appropriate penalty for the charge under s 15 at $30,000 and the charge under s 16 at $90,000. However, applying the principle of totality, her Honour reduced the penalty of the s 15 charge to $20,000 and the s 16 charge to $70,000. Her Honour then applied a discount of 28 per cent (being 25 per cent for the utilitarian value associated with the guilty plea and 3 per cent for subjective factors) and ordered the following penalties: in Matter No IRC 4401 of 2001- $14,400, and in Matter No IRC 4396 of 2001- $50,400. There was an order for a moiety of each penalty to the prosecutor.

Agreed Facts 7 An Agreed Statement of Facts pertaining to both charges was tendered and relied upon by her Honour. The Agreed Statement of Facts was in the following relevant terms: 1. These proceedings were instituted with the written consent of the Director-General of the Department of Mineral Resources, who is a prescribed officer within the meaning of s 48 of the Occupational Health and Safety Ac t 1983. 2. Waratah Engineering Pty Limited ("the Defendant") is a body corporate. 3. Christopher Allen was an employee of the Defendant. 4. Christopher Elliott, Colin Bradley and Douglas Jones were employees of Powercoal Pty Limited ("Powercoal"). 5. 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" or the "mine"). 6. At the mine mining was conducted by means of continuous miners. At all material times Powercoal had four continuous miners operating at the mine. The continuous miners were manufactured by Joy Manufacturing Pty Ltd ("Joy"). 7. The continuous miners included machine 12 CM12 JM 4774. That machine was owned and operated by Powercoal. 8. Another continuous miner in operation at Cooranbong Colliery was a Joy 12 CM12 (No CM04) JM 4952 which was owned by Waratah Hire Pty Limited and hired to Powercoal pursuant to a hire contract for the purposes of producing coal. Waratah Hire engaged the Defendant to service it. Waratah Hire was a wholly owned subsidiary of the Defendant. It had one employee who was the manager of the company and simultaneously held the position of Operations Manager of the Defendant. 9. The Defendant employed service technicians who were required to service mining and other equipment (including the continuous miner) for various mining companies and for Waratah Hire. The Defendant owned and operated a workshop for that purpose and also sent its technicians to mine sites to work on mining equipment. 10. Christopher Allen was employed as a service technician. 11. On 5 March 1999 Christopher Allen was inducted to work at the mine at the Cooranbong Colliery and to perform work in accordance with instructions issued by responsible mine officials. Christopher Allen held no appointments from the mine manager authorizing him to operate any underground machinery. 12. On 30 June 1999 the continuous miner sustained damage to the conveyer boom main hinge points. 13. John Gluszek, another of the Defendant's employees, 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 disconnected the conveyer boom from the continuous miner and it was taken to the Defendant'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. He was issued with a Job Instruction for Job 12732, ITP, parts and a material data sheet. 16. The job instruction included a direction to "isolate machine as per colliery instructions" and extracts from the maintenance manual for the machine CM04, JM4952. 17. The repaired conveyor belt was transported to the Cooranbong Colliery. The installation of the conveyer boom onto the continuous miner had commenced during the afternoon shift on 1 July 1999 and was being conducted approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine known as storage B Panel. Christopher Allen assisted the afternoon shift in the installation. 18. Christopher Allen left the job and came out of the mine at approximately 9.30pm as there was no Deputy present. He was asked by Allan Tandy, from Powercoal to stay while the job was completed and he left the pit top at 10.30pm with the night shift to go underground again for a second shift for that purpose. 19. The night shift crew with Mr. Allen in attendance was required to complete the installation and specifically was required to connect the boom lift cylinders to the boom and reconnect the conveyer. 20. The fitter in charge was Christopher Elliott who was assisted by Colin Bradley, another fitter, and Doug Jones, an operator. All three held numerous appointments including an appointment to operate a Joy CM12CM on face operations during production. 21. Messrs Elliott and Bradley positioned the right hand boom lift cylinder and attached it to the bottom mounting point, the ram of the cylinder was extended by hand and attached to the underside of the boom with the clevis pin. 22. Messrs Elliott and Bradley attached the left hand lift cylinder to the bottom mounting point and attempted to extend the ram by hand. They were not successful. 23. Because they were unable to extend the left hand boom lift cylinder by hand Mr. Elliott decided to use the machine hydraulics. Mr. Jones was summoned from the crib room to operate the miner. Mr. Elliott instructed Mr. Jones to lower the stabiliser jack to provide more working room. Mr. Jones turned the power on and by using the remote control box lowered the stabiliser jack and turned the power off again. 24. Mr. Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position. Mr. 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 cylinder foot in position with his foot. 25. Mr. Allen had been at the toilet during the connection of right hand boom cylinder. He returned and was present at the attempt to extend the left hand boom lift cylinder but gave no instruction or advice about the procedure being used, and took no personal part in it. 26. Douglas Jones started the power on the continuous miner with a remote radio controller the effect of which was to cause the stabiliser jack to be raised partially from its lowered position. The remote radio controller was in "radio" mode. The stabiliser jack retracted (i.e. rose) automatically when the machine was used in radio mode. This caused both of Christopher Elliott's legs to be trapped between the stabiliser jack and the underside of the continuous miner. 27. The procedure the Powercoal employees used to raise the boom lift cylinders using the machine's hydraulics accorded with the written procedures in the manual provided by Powercoal and published by the manufacturer, Joy, but differed from the procedures set out in the Waratah Hire manual. Those differences are set out below. 28. The automatic stabiliser jack retraction feature had been added to the Joy continuous miners in an effort to improve the safety of the machines and avoid the possibility of unpredictable and dangerous slewing of the conveyor boom on start-up with the stabiliser jack down. However, a Hazard and Operability Study of the 12CM12 continuous miners conducted in April 1998, in which both Powercoal and the Defendant participated, had recommended that this feature be eliminated. 29. Douglas Jones had been operating this particular continuous miner for 3 months and knew that the stabiliser jack had the capacity to retract automatically but had never changed the boom or lifted the boom jacks on this model of continuous miner. On three or four occasions he had changed the booms on certain other continuous miners but they did not have a stabiliser jack that retracted automatically. He was unaware of the isolation power rules. At all times he simply followed the fitter's instructions. 30. Colin Bradley was able to remove his right leg from its position between the stabiliser jack and the main frame of the continuous miner before the stabiliser jack first started to retract and was therefore able to avoid injury. 31. The continuous miner was immediately shut down using the remote control. Christopher Elliot's legs remained trapped. Mr. Jones restarted the miner with the intention of releasing Mr. 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 stabiliser jack, which then retracted to the full up position. The effect of this was to further crush Christopher Elliot's legs. 32. Christopher Elliott's legs were crushed and the metal pierced his left thigh cutting through the femoral artery and vein ultimately causing his death. 33. Immediately after the second retraction the stabiliser jack was then lowered to the ground using the stabiliser jack toggle. This was possible as the machine had not been turned off as it had been on the earlier occasion. 34. The continuous miner operated in accordance with the machine specific software details as set out in the MCS Radio Specification Manual for the Waratah Hire Manual for CM12 JM4952. As the remote control, rather than manual mode, was used, the stabiliser jack of the continuous miner automatically retracted upon the hydraulic pump on the continuous miner being started. If the remote control had been in manual mode the stabiliser jack would not have automatically retracted. The software details were not included in the material supplied to Mr. Allen with the Job Instruction for Job 12732 and neither he nor any of the Powercoal employees was advised that if the remote had been in manual mode the stabiliser jack would not have automatically retracted. 35. It would have been possible after the initial retraction for Mr. Jones to immediately lower the stabiliser jack utilizing the stabiliser jack toggle had the machine not been turned off. As the machine was turned off the effect of powering up for a second time was to cause a further automatic retraction (this time to the full up position) in accordance with the software logic incorporated into the machine by the manufacturer. 36. The Defendant had access to the Waratah Hire Technical Manual for 12CM12 -12BVW, CM04 JM4952 written by Joy ("Waratah Hire Manual"). Extracts from this manual were given to Christopher Allen as part of his job instructions. 37. The Waratah Hire Manual recognised that the continuous miners had two modes of operation, radio and manual, and that radio mode was primarily used for production and manual mode was intended primarily for maintenance purposes. 38. Waratah Hire Manual contained the following instruction: "Check to be certain that everyone is well clear of the machine before moving it or adjusting the position of any hydraulic component." This section was not included in the material supplied to Mr Allen with Job Instruction for Job 12732. 39. The Waratah Hire Manual in the section dealing with replacement of the main conveyor provided that in replacing the conveyor the following steps should be followed: . Isolate the miner electrically as per the Mine Managers Rules . Extend conveyor lift jacks and install pins . Reconnect hydraulic hose to the conveyor swing cylinder. This section was included in the material supplied to Mr. Allen with Job Instruction for Job 12732. 40. The instructions in the Waratah Hire Manual did not require the hydraulic hoses to be reconnected prior to the cylinder being reconnected. The manual contained no instructions that conveyor or lift jacks are to be extended using machine hydraulics. 41. The manual used by Powercoal for the operation of the 12CM12 CM 04 was a different manual ("Powercoal Manual") which had been prepared for a different continuous miner that is machine JM4774. 42. The Powercoal manual differed from the Waratah Hire Manual in that it contained a recommendation from the manufacturer against manually operating the hydraulic functions and also suggested that "the radio remote facility allows the machine to be operated from the most advantageous position." 43. Powercoal had determined that radio mode was to be used for maintenance purposes and issued an instruction to that effect. 44. The replacement procedure for the conveyor set out in the Powercoal manual also differed from the procedure in the Waratah Hire manual in that it provided for the following sequence: . be certain that electrical power has been disconnected . reconnect the hydraulic hose to the cylinder . reconnect the electrical power to the machine and carefully extend the cylinder hydraulically until the cylinder rod eye aligns with the pin bore in the mounting racket on the conveyor . disconnect electrical power from the machine 45. These procedures necessarily required the hydraulic hoses to be reconnected to the boom lift cylinder before the cylinder itself is reconnected. 46. These procedures were duplicated in the Powercoal Job card JM019 that applied to the work being conducted by the employees of the mine, namely Messrs Elliott, Bradley and Jones. 47. The job instructions issued to Christopher Allen specifically directed him to "isolate the machine as per colliery instructions". The directions in the extracts from the Waratah Hire Manual provided to him also directed that the miner be isolated electrically as per the Mine Manager's rules. The mine manager rules on isolation were contained in Powercoal Isolation Procedures (GWP005) and Continuous miner Operating Procedures (SWP002). These procedures were not applied on the night of 1 July 1999. The Powercoal employees believed they needed the power of the miner to raise the hydraulic cylinder. They were not given a portable hydraulic jack although there was one available at the mine. 48. None of the Powercoal employees was given specific instructions by their employer or by Waratah Engineering about the method to be adopted to attach the boom lift jacks to the new boom or the safe way to elevate the boom lift jacks. 49. The safe working procedure ultimately adopted after the accident for completion of the task of connecting the left hand boom lift cylinder was based on the extracts from the Waratah Hire Manual provided to Mr. Allen with the addition of the instruction that the conveyor lift jack be extended "using auxiliary hydraulic power pack". This instruction was inconsistent with the instructions in the Powercoal manual and Powercoal job card JM019, which envisaged using the machine's hydraulics, but not inconsistent with the procedure in the Waratah Hire manual which did not. On the other hand the Waratah Hire manual did not advert to the method to be applied to extend the boom lift cylinders in the event that the task could not be carried out manually using an auxiliary hydraulic power pack. 50. None of the mine employees was (sic) conscious of or remembered the automatic retraction feature even though the mine itself had issued a written reminder to its fitters of stabiliser jack automatic retraction upon start up on 18 November 1998 after there was a near miss in similar circumstances. 51. Christopher Allen was not informed or instructed about or trained in the automatic retraction of the stabiliser jack upon start-up in remote mode arising from software incorporated in the machine and did not bring this feature to the attention of the employees of Powercoal: Christopher Elliott, Colin Bradley and Doug Jones. The Defendant did not take any other steps to bring this feature to the attention of Powercoal employees. 52. Consequently, the Defendant did not provide such information or instruction as may have been necessary to ensure that Colin Bradley and Christopher Elliot, persons not in its employment who were present at its place of work were not exposed to risks to their health or safety arising from its undertaking.

Judgment at First Instance 8 Her Honour first considered the nature and quality of the offences. In doing so, she had regard to the elements of control on site and the statutory regime guiding the mining work, stating: [58] The defendant here accepted its culpability for the two offences ... It, nevertheless, argued that they did not involve serious breaches of its obligations under the Act and that it had but little control over the circumstances which culminated in the risks to safety to which the four workers were exposed. ... [61] This statutory regime presumably explains why it was that the parties agreed in paragraph 11 of the agreed statement of facts, that Mr Allen was inducted to work at the mine, in accordance with instructions issued by responsible mine officers. It was also agreed that Mr Elliott, a Powercoal employee, was the fitter in charge, at the time the accident occurred. On the evidence, Mr Allen plainly had no role in directing the work of the Powercoal employees. This followed from the relevant statutory scheme.

[62] Also to be taken into account is that the defendant provided Mr Allen with instructions, which, if observed, would have prevented the accident occurring. The evidence showed that those instructions reflected the Waratah Hire manual for the machine in question. Whether the Powercoal employees were aware of the instructions, was not clear on the evidence. What was clear was that the mine employees were not following those instructions, but their employer Powercoal's instructions, even though these instructions were designed for a different machine, to that on which the work was being performed, namely one owned by Powercoal. The Powercoal instructions were inconsistent with the Powercoal mine isolation procedures, as well as the defendant's instructions for the work. This situation plainly exposed the Powercoal employees performing the work to the risks which led to the death of Mr Elliott.

9 In her assessment of the respondent's culpability, Schmidt J observed (at [66] - [69]: The defendant, in those circumstances pleaded guilty to both offences, accepting that more should have been done to train Mr Allen in the automatic retraction feature of the jack, when the machine was turned on and that if he had been, this knowledge might have assisted in avoiding the accident. I accept that the plea was properly made in the circumstances. I also accept, however, the defendant's submission that its culpability in all these circumstances was lower than that of Powercoal.

That conclusion flows inevitably from the fact that while Mr Allen was present at the mine to assist in the installation of the conveyor boom, he was not required to assist with the particular work which gave rise to the risk to safety here at issue. He was present when the accident occurred, after his return from the bathroom. The work which gave rise to the accident was then being performed by the Powercoal employees, at its direction and in accordance with its instructions. While the defendant had given Mr Allen instructions as to the installation work which the Powercoal employees were engaged upon, it was an agreed fact that he was obliged to work in accordance with Powercoal instructions, while working at the coal mine.

In all of these circumstances, while the risk to safety posed for the Powercoal employees was plainly serious, it is difficult to reach the same conclusion in relation to Mr Allen. This perhaps explains why the prosecution of Powercoal in relation to the risk to the safety of Mr Allen, was not finally pressed by the prosecutor. Why the section 15 prosecution was pressed in relation to the defendant, in those circumstances, is rather more difficult to comprehend. Nevertheless, I am satisfied that I cannot properly ignore the plea entered.

I am satisfied on the evidence that the system which the defendant had in place and upon which the defendant relied in mitigation, had some relevant deficiencies. While the defendant provided instructions to Mr Allen in relation to work to be performed on the machine, there was not a formal system in place to ensure that relevant information as to safety was exchanged between the defendant and Powercoal. While at the mine, Mr Allen was subject to Powercoal instructions. It follows that reliance by the defendant on an instruction to Mr Allen, that he provide the defendant's instructions for the work to Powercoal employees, was plainly inadequate to ensure that the discrepancy between the instructions being given by the defendant and Powercoal was either noted, or if noted, properly attended to. Given the provisions of the legislation regulating this workplace earlier referred to, it was undoubtedly important for those instructions to be provided to Powercoal, so that any discrepancies in the proper approach to the work could be detected, resolved and its employees and Mr Allen instructed accordingly.

10 In relation to penalty, Schmidt J considered the issue of parity, and in particular, the related prosecution in Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364. Her Honour reasoned at [77] - [80]: ... the facts agreed by the prosecutor in this matter, were significantly different to those which the prosecutor agreed in Powercoal. Had those facts been before the Court in Powercoal , the defendant in those proceedings must have had a much higher penalty imposed upon it.

In Powercoal, reference was made to the applicable isolation procedures and the continuous miner operating procedures, which were said not to have been applied and which did not specifically deal with the work being performed (paragraph 28 of the agreed facts). In paragraph 29, it was agreed that Powercoal had not given instructions to its employees in relation to the installation of the conveyor boom and specifically, that the machine had to be isolated. Quite different facts were agreed in this case.

Here, it was agreed that there were specific procedures dealing with the work in question which the Powercoal employees were applying and that they had been provided by Powercoal. The Powercoal instructions were instructions designed for another continuous miner owned by Powercoal and not the instructions provided by the manufacturer of the Waratah machine. The Powercoal instructions appeared to be inconsistent with its own isolation procedures.

There was no explanation as to how it came to be that such materially different facts were put to the Court in this case. The prosecution submitted, however, that the case had to be determined on its own facts. That approach must be accepted and a penalty fixed which has proper regard to the nature and seriousness of the offence here in question, having regard also to facts such as specific and general deterrence which I accept must here be taken into account. 11 We note the penalty imposed on Powercoal on appeal in Morrison v Powercoal Pty Ltd was $155,000. That amount included a discount of 35 per cent.

12 Having considered the prosecutions in Morrison v Powercoal Pty Ltd and the penalty imposed on appeal, her Honour concluded as to the respondent's culpability at [82] - [84]: In my view, this defendant's culpability must be assessed as being considerably lower than that of Powercoal for the events which here led to the risks which became the subject of charges in these proceedings and in Powercoal . In my view these are lower range cases, with the defendant's culpability in respect of the risk to which the Powercoal employees were exposed, considerably lower than that of Powercoal, given the evidence here led. Undoubtedly, the risk to these employees was grave, but it cannot be overlooked that not only was it Powercoal employees who were performing the work which exposed them to the risk; they were following Powercoal instructions which exposed them to that risk and not those of the defendant, which had no authority to give them instruction in their work. The instructions given by Powercoal to its employees and those given by the defendant to Mr Allen were in conflict. Given the provisions of the Coal Mine Regulations Act 1982, it is difficult to see how the defendant, present only through Mr Allen, a service technician, could have overridden the instructions given to the employees by Powercoal, had he become conscious that his instructions from the defendant were different to those given by Powercoal to its employees. The evidence did not show that Mr Allen or the defendant were aware of this difference. This helps explain the plea to the s16 prosecution, but also puts into context the defendant's lower culpability, in respect of the risk in question.

As to the s15 prosecution involving Mr Allen, it is difficult to see that he was exposed to, too much risk at all. He was given instructions which, if followed, would have prevented this accident occurring. He, however, was not involved in performing the tasks which gave rise to the risk or the accident. He was required to perform other tasks while present in the mine. The evidence did not show that he was exposed to any risk when performing those tasks. This perhaps explains the prosecutorial decision not to pursue Powercoal at all, in relation to any risk to which it might have exposed Mr Allen.

The defendant accepted, nevertheless, that it had been involved in a breach of the Act, in failing to instruct Mr Allen in the automatic jack retractions feature of the miner. Inescapably, while the plea has been accepted, that offence must be assessed as falling within a low range. I have so approached the matter in assessing penalty.

Grounds of the Appeal 13 The appellant appealed upon 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: (a) the risk to which its employee and the employees of Powercoal were exposed was specifically known and identified by the defendant; (b) the steps available to the defendant to ensure the safety of its employee and others were simple and readily available; (c) the detriment to safety was one that could have involved the death of two employees of Powercoal; (d) the failure by the defendant to provide Messrs Elliot, Bradley and Allen with any information, instruction or training in the installation of the conveyer boom on the continuous miner, including that the stabilizer jack would automatically retract when the power to the continuous miner was activated and the risk thereby created to health and safety. (3) The sentence imposed by her Honour miscarried because her Honour wrongly found that the defendant had no authority to give information, instruction or training to employees carrying out the work. (4) The sentence imposed failed to have regard to the defendant's failures to provide such information, instructing and training consistent with the particulars of the charges which the defendant had admitted. (5) Such other grounds and reasons the Commission considers appropriate.

14 The appellant relied solely on Ground 1, that is, that the sentence imposed by her Honour was, in all the circumstances, manifestly inadequate.

submissions The Appellant's Submissions 15 The appellant conceded that, for it to succeed, it must demonstrate the sentence imposed by her Honour was manifestly inadequate or that there is, in the judgment, some error of principle or mistake of fact or of law that vitiates the exercise of her Honour's sentencing discretion. The appellant submitted it is not necessary that some definite or specific error be identified - the nature of the sentence imposed may itself afford convincing evidence that the sentence discretion miscarried (Cranssen v King (1996) 55 CLR 509 at 519 to 520; Whittaker v King (1928) 41 CLR 230).

16 The appellant submitted where the sentence is outside the range of penalties that might have been imposed, the sentence will prima facie be one that demonstrates relevant error (Griffith v King (1977) 137 CLR 293).

17 The appellant conceded, while the court has a discretion as to whether to intervene or not in a sentence following a Crown appeal, such intervention should occur only to correct a manifest error. In the present matter, the appellant submitted the Court should exercise its discretion to intervene in this matter to correct the manifest error of the trial Judge. Reliance was placed by the appellant on the approach taken by a Full Bench of this Court to appeals against sentence in Inspector Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at [45]-[55] and affirmed by the Full Court in Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 "the Powercoal Appeal") at [29].

18 It was the appellant's submission Mr Allen's sole purpose for attending the Cooranbong Mine on 1 July 1999 was to assist in the installation of the conveyer boom onto the continuous miner. However, he gave no instruction or advice to the Powercoal employees about the procedure being used, and he did not take part in the procedure. Further, Mr Allen was not informed, instructed or trained in relation to the automatic retraction of the stabiliser jack upon start-up in remote mode and, given this lack of knowledge or training, he was unable to bring it to the attention of the Powercoal employees.

19 In oral submissions, Mr R. Reitano of counsel, who appeared for the appellant, gave the following further explanation of the appellant's contentions: Kavanagh J How could he have pulled up a Powercoal employee? What authority would he have had to control a Powercoal employee? Reitano Why is he there? If he was to say - and the only way of answering your Honour's question is to deal with it this way - if he was to say to Mr Elliott "if you put your legs under that stabilizer jack and turn the power on the effect of that will be to crush your legs", is anyone going to say "what authority do you have to tell us about that"?

Boland J Just on that point, Mr Reitano , the written instructions, the paper instructions that were provided to Mr Allen, if he had been instructed in those properly, you are saying he would have said the words that you have just said, is that the case? Reitano If he had been given proper instructions and proper information and proper training, I put the three together, if all those things were provided to him and Mr Elliott climbed under the machine in the way that he did and put his legs where he did put them, Mr Allen would have been in a position to say "hold on, what you are doing is very dangerous. The effect of what you are doing exposes to you the very real risk between the man and stabiliser jack".

Boland J Can you take me to the paper instructions? Reitano The paper instruction does not deal with it.

Boland J But nevertheless you say the defendant knew that. Reitano The defendant knew. I don't think there is any serious issue, the defendant knew the risk posed by the stabiliser jack. Her Honour makes [reference] later in the judgment [to] what I describe as [a] previous near miss, and the exploration that was conducted into what could be done to avoid the same thing happening again.

20 The appellant submitted her Honour failed to give any or any appropriate weight in assessing the nature and seriousness of the offence to the "vitally important" facts that: (1) the risk to which the defendant's employee (Christopher Allen) and to which two employees (Christopher Elliott and Colin Bradley) of Powercoal had been exposed by reason of the offences was specifically known and had been identified by the defendant; (2) the steps open to the defendant to ensure the safety of its own employee as well as the employees of Powercoal were simple and readily available; (3) the detriment to safety was one that could have involved the death of two employees of Powercoal and of one of the defendant's own employees; (4) the failure by the defendant to provide Messrs Elliot and Bradley with any information and instruction; and Allen with any information, instruction or training; in the installation of the conveyer boom on the continuous miner, including that the stabilizer jack would automatically retract when the power to the continuous miner was activated and the risk thereby created to health and safety; and (5) the risk to which the two employees of Powercoal were exposed was exactly the same risk considered by the Commission at first instance and in the Powercoal Appeal.

21 The appellant submitted there were a number of objective features in the case which called for a substantial penalty. In particular: (1) 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); (2) the known and identified risk to which the workers in question were exposed; (3) the serious consequences that inevitably (and did) flow from exposing employees to the risk in question - that is the risk of death.

22 The appellant submitted, in determining the penalty to be imposed, her Honour was distracted from assessing the nature and quality of the offence by five significant matters: (1) A conclusion that the Coal Mines Regulation Act gave the defendant "little control" over what was done at this coal mine even though under the [OHS Act] the coal mine was its place of work whilst at the same time recognising the defendant had done absolutely nothing to equip its employee, Christopher Allen, with the instructions and information necessary to guarantee his own safety and that of the two Powercoal employees. (2) A view that the evidence and the statutory scheme revealed Christopher Allen (the defendant's employee) had no role in directing the work of Powercoal employees. (3) A misguided and wrong conclusion that the defendant had given Mr Allen instructions that if observed would have prevented the incident. (4) The view that the inconsistent Powercoal instructions and the neglect of those instructions by the Powercoal employees was the cause of the incident. (5) The view that the defendant's culpability was lower than that of Powercoal.

23 It was the appellant's submission before Schmidt J that having regard to the nature and quality of the offences, the offences fell within the high range. Her Honour accepted the s 16 offence was a serious one. On appeal, the appellant submitted a total penalty of $64,800, after the application of the principle of totality and having regard also to the comparative penalty imposed in the Powercoal Appeal, was outside the range of appropriate sentences in the circumstances, and therefore manifestly inadequate having regard to those circumstances.

The Respondent's Submissions 24 The respondent was represented in these proceedings by Mr RJ Buchanan QC. The respondent submitted the prosecution elected to challenge her Honour's judgment on the single ground the penalty was manifestly inadequate. The respondent referred to the limited scope for appeals on the grounds of manifest inadequacy of sentence emphasised by Gleeson CJ and Hayne J in Dinsdale v R (2000) 202 CLR 321 (at 325), and also as discussed by Kirby J (at 339-340). It was the respondent's submission that contrary to Buggy v Weathertex and Dinsdale v R, there had been no specific error in principle, fact or law identified in her Honour's judgment.

25 The respondent submitted her Honour properly approached the application of the principle of totality as enunciated in Pearce v King (1998) 194 CLR 610 (at 623); Department of Education and Training v Keenan (2001) 105 IR 181 (at 194-197); and WorkCover v Transfield (No 2) (2001) 110 IR 160 (at 177-178).

26 The respondent submitted the appellant had not identified any error of principle, fact or law. Rather, the appellant simply argued the appeal bench should substitute a higher sentence. The respondent contended the penalty applied was "legitimate and reasonable" and "within a given range" (Norbis v Norbis (1986) 161 CLR 513 at 518).

27 It was the respondent's submission the appellant was improperly attempting to argue for a re-evaluation of the facts on appeal, in circumstances where the appeal was not advanced upon the basis that Schmidt J had mistaken the facts or failed to take into account some material consideration. The respondent submitted the following uncontested facts are important: (i) The statutory regime of the Coal Mines Regulation Act governed the work being undertaken;

(ii) Waratah Engineering's employee Christopher Allen had been inducted to perform work at the mine in accordance with instructions issued by the responsible mine managers;

(iii) Mr. Allen did not hold any appointments in the mine;

(iv) The three Powercoal employees involved in the work, held numerous appointments including an appointment to operate the continuous miner a JOY CM12CM during production;

(v) Mr. Allen had no role in directing the work of the Powercoal employees;

(vi) Waratah Engineering had provided Mr. Allen with instructions contained in a document entitled Job Pack (12732). The Job Pack contained instructions including an extract from the manual for the particular continuous miner that was involved in the work at the mine;

(vii) Relevantly, the instructions contained in the Job Pack provided that the miner should be isolated in accordance with the Mine Managers Rules and that the hydraulic hose to the conveyor should be reconnected after the cylinder was engaged. (It follows necessarily that the cylinder was to be engaged without hydraulic power being available from the machine itself).

(viii) The Powercoal employees were given a different set of instructions in Job Card JM019 which were based on a manual for a different model continuous miner which was owned by Powercoal;

(ix) The instructions contained in job card JMO19 provided for the electrical power to be re-established before the cylinder was engaged and for the use of the machine's hydraulics to engage the cylinder. This was the system followed on the night in question. The job card also provided that the remote control should be used in radio mode

(x) The instructions contained in job card JMO19 conflicted with the isolation procedures promulgated by Powercoal at the mine;

(xi) The instructions contained in JMO19 were different to the instructions provided by Waratah Engineering;

(xii) The mine employees were following the instructions provided by Powercoal.

(xiii) It was not alleged that all three Powercoal employees were at risk. No such allegation was made, for example, with respect to the operator, Mr. Jones, but only with respect to the two fitters actually performing work on the continuous miner.

(xiv) Procedures approved after the accident involved modifying the Job Pack referred to in subparagraph (vi) but not in a way that changed the effect of the instruction it already contained. In other words the new, improved instructions were in their practical effect the same as the Job Pack instructions, although contradictory of the instructions given and actually followed in Job Card JMO 19.

28 The respondent submitted such facts were the basis for the finding the respondent had little control over what was done at the Cooranbong Mine even though the mine was relevantly its place of work. This finding was, on the evidence, clearly correct, the respondent submitted.

29 The respondent submitted the risk to health and safety considered by her Honour arose when specific work was being performed by the Powercoal night crew who were reconnecting the boom lift cylinders to the boom along with the reconnection of the conveyor. Mr Allen was not present during the reconnection of the right hand boom cylinder. Whilst he was present at the time the Powercoal employees were connecting the left hand cylinder, he took no part in the actual procedure.

30 It was relevant, the respondent submitted, to her Honour's finding as to the objective seriousness of the offence that: the Powercoal employees failed to follow the mine isolation procedure; the operator failed to remember a working feature of the mine; and a series of operating errors caused, then repeated, the stab jack retraction which caused injury to, and ultimately the death of, Mr Elliott.

31 The respondent submitted it legitimately exercised diminished control over the work procedures adopted in the mine and that was an issue which went to her Honour's assessment of culpability. Her Honour found the culpability of the respondent arose from deficiencies in the system whereby it communicated relevant information to Powercoal. Her Honour criticised the system as being inadequate. Her Honour found there should have been a formal system in place to ensure relevant information was exchanged between the two employers on site. Her Honour thereby identified the respondent's culpability and the associated penalty to be less than Powercoal's. It was the respondent's submission such a finding was open to her Honour.

The Appellant's Submissions in Reply 32 The appellant submitted in reply it was not ultimately at issue whether the manifest inadequacy is evident on the face of the judgment; whether it can be gleaned from the significant disparity between the penalties imposed upon the respondent and Powercoal; whether it is apparent from the obvious objective seriousness of the offences; or whether it arises because Schmidt J took into account irrelevant matters or gave undue weight to other matters. The appellant submitted on any approach, the penalties imposed by Schmidt J were manifestly inadequate.

33 The appellant submitted the respondent's submissions failed to explain the presence of Mr Allen on the night in question. It was indisputable the respondent sent its employee, Mr Allen, to Powercoal's mine to do work in the re-installation of the boom cylinder to the continuous miner. In that circumstance it was obliged to "guarantee" or "make certain" Mr Allen's safety. The fact it did not "control" the place in which Mr Allen was to work is neither exculpatory nor an excuse, nor even an explanation for illegally exposing Mr Allen to a risk to his safety that potentially could have killed him.

34 In circumstances where the respondent chose to send its employee to work at the Cooranbong Mine, whatever its degree of control, the respondent exposed its employee (and the Powercoal employees) to the very same risks to which Powercoal exposed its employees. The appellant submitted the nature of the risk to which Mr Allen was exposed was precisely the same risk to which other workers at the mine were exposed, which led to the death of Mr Elliott.

35 Mr Allen, like Mr Elliott, was one of the workers working on the continuous miner at the time the stabiliser jack was activated. The submission the respondent's culpability in all the circumstances was less than that of Powercoal fails to address the significant disparity between the penalties imposed upon the respondent and Powercoal. The differences in the facts which form the basis for the assessment of penalty were not so significant as to warrant such a disparity. The appellant submitted that the disparity in itself demonstrates the manifest inadequacy of the penalty imposed on the respondent.

36 The appellant submitted this is an appropriate case for appellate intervention. It would be manifestly unjust to allow the sentences imposed by Schmidt J to stand and the Full Bench should re-sentence the respondent.

Principles 37 The approach to be taken on prosecution appeals against sentence was recently considered by a Full Bench in Buggy v Weathertex at [45]-[55]. The Full Bench in that case observed: The appeal is brought pursuant to s 196 of the Industrial Relations Act and s5D of the Criminal Appeal Act . Section 5D of the Criminal Appeal Act provides, as modified by s196(3) of the Industrial Relations Act 1996, the Full Bench of the Court "may, in its discretion vary the sentence and impose such sentence as to the said court may seem proper." Further, the prosecutor has a right to appeal and is not required to seek leave.

Thus, although under s 5D, 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].

There are some differences in emphasis as to the principle of restraint in Crown appeals. See for example the comments of Kirby J in Dinsdale v The Queen at 341 - 342 and in Wong v R at 263 where his Honour refers to the principle of restraint as being well established. This may be compared with the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325[4] where their Honours indicate that the principles in House v The King (1936) 55 CLR 499 apply "both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness". We refer also to the summary of principles set out by the New South Wales Court of Criminal Appeal in R v Allpass and considered in Wright J's judgment in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited (1999) 92 IR 392 at 393-394.

In Mayo-Ramsay v Allen Taylor , the Court was divided on the nature of error that would warrant appellate intervention in prosecution appeals. Hungerford and Peterson JJ at 402 held that the relevant test was whether the error of principle amounted to a "circumstance which is sufficiently rare and exceptional as to warrant intervention in the limited circumstances available on appeal". Wright J, dissented, holding that the majority view was too restrictive, and that the relevant consideration was whether "there is an error of principle ... manifested in either error on the face of the judgment on sentence or which can be inferred from the manifest inadequacy of the sentence imposed" whilst emphasising the appeal court's "overriding discretion not to increase the sentence [and] giving appropriate weight to the significance of the circumstance of double jeopardy generated by a Crown appeal" (at 393, 395).

In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 706, the Full Bench noted the division of opinion in Mayo-Ramsay v Allen Taylor but found it unnecessary to resolve the different approaches for the disposition of the appeal. However, the Full Bench referred to the principles stated by Barwick CJ in Griffiths v The Queen at 310 (which include that such appeals should be a rarity) and the principles as to Crown appeals set out in R v Allpass at 562 - 563.

The meaning of manifest inadequacy of sentence was discussed in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen at 325 as follows:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

It is apparent from their Honours' discussion that there is a distinction between specified material error in the sentencing judge's approach or reasoning ( House v The King errors) 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, in our view, to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in Mayo-Ramsay v Allen Taylor. Clearly, 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: see Kirby J's observations in Dinsdale v The Queen (2000) 202 CLR 321 at 341 - 342 and in Wong v R (2001) 185 ALR 233 at 263; see also R v Allpass at 562 - 563, the joint judgment of Brennan , Deane , Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299 and Batty v Graincorp .

The importance of the principle of double jeopardy particularly in re-sentencing has been acknowledged and applied by this Court on numerous occasions. See, for example, Batty v Graincorp at [5], where the Full Bench dealt with a Crown appeal against inadequacy of sentence. Patton v Fletcher Construction Australia Limited (No 2) [2003] NSWIRComm 94 at [3], [8]; Bultitude v Grice (No. 2) [2002] NSWIRComm 234 at [7]; Legge v Coffey (No 3) [2002] NSWIRComm 30 at [7]; Vierow v Ridge Consolidated Pty Ltd (No 3) [2002] NSWIRComm 345 [5]; Profab [41] - [45], Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [17] are examples of cases of Crown appeals against acquittal where the principle has been applied.

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 at 562), or at the lower range of available sentences: Dinsdale v The Queen at 341; Profab Industries Pty Ltd.

38 We respectfully adopt this approach. See also Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364; Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; Inspector Gregory Maddaford v Graham Gerard Coleman and Anor [2004] NSWIRComm 317; WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323; and WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247.

Consideration 39 The prosecution identified two relevant risks arising from the incident which led to Mr Elliott's death: first, a risk to the health, safety and welfare of Powercoal employees at the Cooranbong Mine (the s 16(1) charge); and secondly, a risk to the health, safety and welfare of the respondent's employee, Mr Allen, who was assisting the Powercoal employees (the s 15(1) charge). The sole ground of appeal in each prosecution is the penalty imposed was manifestly inadequate.

40 Four issues arise for the Court's consideration in this appeal in order to determine the adequacy of the penalties imposed at first instance (taking into account both the gravity of each breach and relevant subjective features).

41 Firstly, to what extent, if at all, does the respondent's degree of control and/or authority at the Cooranbong Mine diminish the objective seriousness of the offences; secondly, to what extent, if at all, does the fact the respondent and Powercoal gave conflicting instructions to their respective employees diminish the respondent's culpability, and further in that regard, whether the respondent's instructions were themselves adequate in all of the circumstances; thirdly, did the penalties imposed by Schmidt J correctly reflect the objective seriousness of the offences; and fourthly, did Schmidt J err in her application of the principle of parity?

42 In the assessment of the objective seriousness of these offences there were a number of critical facts determined by her Honour from the evidence and the Agreed Statement of Facts. She determined in judgment: · Mr Allen had been inducted to perform work at the mine by the respondent in accordance with instructions issued by the responsible mine managers. · The respondent provided Mr Allen with instructions contained in a document entitled "Job Pack". The Job Pack instructions included an extract from the manual for the particular continuous miner that was involved in the work at the mine. · Relevantly, the instructions contained in the Job Pack provided that the miner should be isolated in accordance with the Mine Managers Rules and that the hydraulic hose to the conveyor should be reconnected after the cylinder was engaged. · The Powercoal employees were given a different set of instructions in a "Job Card". Those instructions were based on a manual for a different model continuous miner. The instructions contained in the Job Card provided for the electrical power to be re-established before the cylinder was engaged and for the use of the machine's hydraulics to engage the cylinder. The Job Card system was the system followed on the night in question. · Mr Allen and the Powercoal employees therefore were instructed differently as to the system of work. On the night of the incident the Job Card (Powercoal) system was followed. · Mr Allen had been instructed to provide the Powercoal employees with the respondent's instructions as to its system of work. One of the Powercoal employees had received that instruction as to the safe way to elevate the boom lift jacks. · The safe working procedure adopted after the accident however was based on the respondent's system, that is, that which was provided to Mr Allen. There was one addition to the respondent's instruction, namely, the conveyor lift jack be extended "using auxiliary hydraulic power pack". · This instruction was inconsistent with the instructions in the Powercoal's manual and Job Card, which envisaged using the machine's hydraulics not an auxiliary hydraulic be used but not inconsistent with the procedure in the respondent's manual. However, the respondent's manual did not advert to the method to be applied to extend the boom lift cylinders in the event that the task could not be carried out manually using an auxiliary hydraulic power pack. · Further, the mine had issued a written reminder to its fitters as to the stabiliser jack's automatic retraction upon start up. This was issued on 18 November 1998 after there was a near miss in similar circumstances to the incident before us. None of the Powercoal employees on site that evening remembered the automatic retraction feature.

43 It was agreed Mr Allen had been called to work at the mine and to perform that work in accordance with instructions as advised by the mine officials. It was also agreed he had no appointment from the responsible mine manager authorising him to operate underground machinery.

44 In such circumstances her Honour determined the respondent's employee, Mr Allen, while on the site, had "had no role in directing the work of the Powercoal employees" and she then commented:

"This followed from the relevant statutory scheme".

45 No statutory scheme delineating a line of authority can be relied upon to excuse an employer's absolute obligation under the Act to recognise, instruct and train against a risk to safety especially in circumstances, as was recognised in this matter, where the employer was aware of the relevant risk.

46 While Powercoal may have assumed authority at the Cooranbong Mine on the evening concerned, the site remained the respondent's place of work and under the Act the respondent was obligated to ensure the safety of all persons at its worksite. There can be no acceptable submission that, under the Act, in circumstances where there is a combined workforce involving employees from two employers and the site becomes the place of work for each employer, any assumption of control or authority, by one or other employer on that worksite, diminishes the statutory obligation placed upon each employer to ensure the safety of both its employees and others at its place of work. Therefore, there can be no significant diminution in the objective seriousness of these offences by any reliance of the respondent as to a lack of control on site, although it is necessary to have regard to the specific culpabilities of each offender in assessing penalty. Whilst it is appropriate to have regard to the role played by other entities as part of a review of the total circumstances of a particular prosecution so as to evaluate the real culpability of a defendant, such factors cannot reduce the culpability of the defendant in the sense of apportioning the overall penalty. It is important to assess the nature and seriousness of the defendant's offence by reference to the actual contribution of the defendant to the relevant risk: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]; WorkCover Authority of NSW (Inspector Farrell) v Morrison (No. 2) (2002) 112 IR 312 at [53] and WorkCover Authority of NSW (Inspector Mansell) v Anytime Industrial Services Pty Limited (2001) 110 IR 34 at [21] - [30].

47 The second issue for consideration is whether there can be a diminution of objective seriousness given the employers' conflicting instructions and the quality of the instruction and training given by the respondent to its employee, Mr Allen.

48 There was a systemic failure by the two employers on this site, Powercoal and the respondent, to co-ordinate a safe system of work for the task at hand. The facts reveal the system of work adopted on the site on the evening concerned was that of Powercoal. The established facts also reveal the respondent's alternative system of work to that of the Powercoal system would have avoided the circumstance which created the risk of injury.

49 The existence of conflicting instructions issued by each employer does not diminish this respondent's culpability for the offences. Contrary to her Honour's finding at [66], we consider that the conflicting instructions given to each group of employees per se did not create the risk. The risk to safety arose when the Powercoal unsafe system of work was adopted and no modification of it was provided by the alternative system of the respondent. Both employers were responsible for the failure to co-ordinate a safe system of work to be adopted for the performance of this task.

50 On the contrary, it illustrates one of the respondent's failures: it was particularly the failure to inform, instruct and train the installation team (which comprised employees from two different employers) in a single system of work where there was no conflict which was the essential system failure on this worksite leading to such a tragic consequence. The respondent had an obligation to ensure the safety of the Powercoal employees during the repair once this was its place of work. There was no evidence it made any attempt to co-ordinate with Powercoal the system of work to be followed in the performance of the task (the s 16 offence). These failures were failures of the respondent.

51 It must be said that, in all the circumstances, the respondent's instructions were themselves inadequate. The failure by the respondent to provide Mr Allen and the Powercoal employees at the Cooranbong Mine with the proper information, instruction and/or training for the installation of the conveyor boom on the continuous miner, including the fact 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.

52 Further, the respondent's instruction and training of Mr Allen was not sufficiently rigorous. An employer's system of work and the associated instruction and training of its employees must empower those employees to dispute any procedure he or she observes being followed in breach of the system in which they are trained. The fact that Mr Allen did not speak out or felt unable to so do, demonstrates that his instruction was not adequate. This is especially so in circumstances where Mr Allen was the nominated fitter and the respondent had identified the relevant risk in the design of its system of work and had put in place safety precautions to ensure the stabiliser jack was raised before the hydraulics were reconnected. While the respondent's system of work was not sufficiently comprehensive and should have acknowledged the need for manual power to engage the cylinder and was silent on that need - nonetheless, its system of work recognised and would have avoided the risk which caused the injury. Had the respondent's system of work been implemented, the risk reflected in the 15(1) offence could have been avoided (and this must be taken into account in the respondent's favour).

53 We do not consider Schmidt J gave sufficient weight to these failures which exposed fundamental mismanagement in the safety planning by the respondent for the performance of an identified dangerous task.

54 Given the lack of co-ordination between the employers as to the proper system of work and the conflict between instructions issued to each of their employees, in circumstances where neither set of instructions completely met the circumstances faced by the employees, we do not find that the objective seriousness should be diminished simply because it was Powercoal's unsafe system which was adopted. That the respondent's system of work required an additional (but not entirely adequate) element (as revealed in the review conducted after the incident) only adds weight to the view these offences were objectively serious.

55 As earlier mentioned, the penalties fixed by her Honour were - $14,400 for the s 15(1) offence and $50,400 for the s 16(1). The maximum penalty for each offence was $550,000. Following our foregoing discussion of the objective seriousness of the offences, and our view that Schmidt J did not give sufficient weight to the respondent's failures, it follows that the penalties imposed by Schmidt J require review on appeal. Having regard to our assessment of the objective seriousness of the offences (and accepting her Honour's assessment of subjective features of this matter) and the penalties fixed by her Honour (against the maximum penalty for each offence), we are firmly of the view that the penalties imposed by her Honour were manifestly inadequate. We consider the quality of each offence was of such a serious nature that each offence should attract a more substantial penalty. It remains therefore to determine an appropriate penalty after a proper consideration of parity.

56 As to penalty, the appellant contended the risk to which each employee on the site was exposed was "the same risk". Therefore the appellant submitted the Full Bench should reject her Honour's finding the offence under s 15(1) be assessed as "falling within a low range" and the s 16(1) offence be considered a more serious offence.

57 We accept her Honour's determination given the circumstances the penalty to be applied to the s 15(1) offence be lower than that applied to the s 16(1) offence. The respondent had designed a system of work for its employee in which he had been trained and had it been followed would have avoided the risk (s 15 offence). However, it made no positive effort to ensure other persons at its worksite were properly instructed in that system (s 16 offence). For these reasons, the "risk" was not the same.

58 Schmidt J in her consideration as to the respondent's culpability at [77]-[82] placed much emphasis on the differing evidence of the same incident placed before her at first instance in Morrison v Powercoal Pty Limited and that presented by the prosecution in these charges. Her Honour then determined: This defendant's culpability must be assessed as considerably lower than that of Powercoal.

59 We accept the culpability of Powercoal for the risk was more than that of this respondent given Powercoal assumed control of this worksite and implemented their unsafe system of work. The respondent's system would have, on the evening in question, avoided the incident (although not removed all relevant risks associated with the operation). Therefore, we accept the penalty imposed on Powercoal should be more severe than that to be imposed on this respondent.

60 Her Honour, in her consideration as to parity, properly took into account the penalty imposed upon Powercoal in Morrison v Powercoal Pty Ltd. However, we consider the disparity between that penalty and the penalties imposed by her Honour, given this respondent's culpability, are so great as to be indicative of a manifest inadequacy in the penalties imposed on the respondent in each of these prosecutions.

61 We take into account in re-sentencing the respondent the Court must recognise the element of double jeopardy involved in the respondent twice standing for sentence and impose a sentence which is less than the sentence the Full Bench considers should have been imposed at first instance. This principle was recently enunciated by McColl JA (with Howie and Buddin JJ in agreement) in R v King [2004] NSWCCA 444 (published 7 December 2004) that: 181 . . . "the least sentence which could properly have been imposed …at first instance": R v Rose (NSW Court of Criminal Appeal, unreported, 23 May 1996), as "one which is at the bottom of the range": R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] and one "towards the lower end of the range of available sentences": Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J; or the "minimum sentence which should have been imposed at first instance": R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at 204 [206] per Hulme J.

62 As earlier mentioned, we note there was no challenge on appeal to her Honour's assessment of subjective factors. In this respect, Schmidt J applied a discount of 28 per cent and we propose to apply such discount.

63 We find a combination of the above factors require a penalty for the charge brought under s 15(1) (after the application of the discount of 28 per cent for subjective factors) of $46,000 and for the charge brought under s 16(1) of $96,400. This would result in an overall penalty of $142,400. On the application of the principle of totality, the penalty should be reduced to $120,000. We determine the following penalties: in relation to the charge under s 15(1) - $34,000 and in relation to the charge under s 16(1) - $86,000.

Orders 64 We make the following orders: (1) The appeal is upheld. (2) The orders made by Schmidt J on 19 March 2004 in Matter No IRC 4401 of 2001 Matter No IRC 4396 of 2001, other than as to costs, are set aside. (3) In lieu thereof: (a) a penalty of $34,000 is imposed on Waratah Engineering Pty Limited in Matter No IRC 4401 of 2001; (b) a penalty of $86,000 is imposed on Waratah Engineering Pty Limited in Matter No 4396 of 2001; (c) there shall be a moiety of the above penalties payable to the prosecutor. (4) The respondent is to pay the appellant's costs of the appeal as agreed, or in default, as imposed by the Court.

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