WorkCover Authority of New South Wales (Inspector James) v Australian Co-operative Foods Pty Limited

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 R v Brett Walker [2005] NSWCCA 109 CASES CITED: R v Doan (2005) 50 NSWLR 115 R v Gallagher (1991) 23 NSWLR 220 R v Thomspon; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 Veen v The Queen (No 2) (1988) 164 CLR 465

PROSECUTION: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr G McVay of counsel SOLICITORS: Addisons Lawyers

JUDGMENT:

• 22 - INDUSTRIAL RELATIONS COURT OF NEW SOUTH WALES

CORAM: Staunton J DATE: 7/7/2006

Matter No IRC 4664 of 2005 WorkCover Authority of New South Wales (Inspector James) v Australian Co-operative Foods Pty Limited

Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000

1 The defendant, Australian Co-operative Foods Pty Ltd (Australian Co-operative Foods) has entered a plea of guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000. 2 In relation to that offence, it was said that the defendant: Did fail to ensure to ensure the health, safety and welfare at work of its employees including Sami Danyal. 3 The particulars of that charge are that the defendant: [1] Failed to ensure that plant to wit the Longlife Palletiser ("the machine") which was provided for use by its employees, including the worker, at work, was safe and without risk to health when properly used, in that: (a) It was not properly guarded to ensure that its dangerous and moving parts were not exposed at all times during its normal manner of operation. (b) That it was not effectively interlocked to prevent reactivation of the machine process and in particular the sweeper arm whilst persons were within the machine. [2] The defendant failed to ensure that its systems of work and the working environment of its employees were safe and without risk to health in that: (a) Its documented safe operating procedure for the machine which required persons to shout a warning or to check for the presence of persons within the machine, prior to pressing the reset button, was not followed. (b) The machine was capable of operation when safety guarding had been removed from an area which was being accessed by the worker at the time of the incident involving injury to the worker. (c) Work was performed on the machine when no adequate risk assessment had been conducted to identify the risks associated with the lack of guarding to the area in which the sweeper arm mechanism operated. [3] The defendant failed to provide sufficient information, instruction, training and supervision in relation to work involving the use of the machine such as was necessary to ensure the health and safety at work of its employees.

4 The prosecution has tendered an agreed statement of facts as follows: [1] At all material times Australian Co-Operative Foods Pty Ltd, (ACN 010308068) 'the defendant' a company duly incorporated and having its registered office at Quad 1,8 Parkview Drive, Homebush Bay in the state of New South Wales. [2] At all material times the defendant was an employer. [3] At all material times the defendant employed Sami Danyal ('the worker') as a machine operator.

[4] At all material times the defendant was a manufacturer/processor of various food products including dairy products from various locations within New South Wales including factory premises at 433 Victoria Street, Wetherill Park ('the premises').

[5] Situated within the premises was a machine known as a Longlife Palletiser ('the machine'). The machine was used in a packaging process. [6] At an inspection of the packaging floor of the premises by the Prosecutor on 22 January 2004 the following observations were made in relation to the machine: · The machine was located towards the middle of the premises adjacent to the eastern wall and it consisted of an in feed conveyor, palletiser, wrapper unit and out feed conveyor. · Markings on the machine indicated that it was designed and manufactured by W&D Engineering Pty Limited, Victoria, WLLPK1LTWDP- one litre W&D palletiser. It was situated in a north south direction with the feed side to the south and the exit on the north. · On the southern end of the machine adjacent to the feed conveyor was a set of stairs with eight steps. This led to a platform measuring approximately 5.4 metres long and 702 millimetres wide and 1.62 metres high from the floor. On the southern end of the platform was a control panel. · The area underneath the platform was broken up into three sections, the first section was approximately 1.8 metres wide and a control panel was located on the outer edge of the platform's frame. The second was an open area that was approximately 1.8 metres wide. The third section was approximately 1.8 metres wide and a storage shelf was located there. · The control panel measured approximately 400 millimetres wide and 1.38 millimetres long and 1.22 millimetres high. The control panel was supported on 50 x 50 millimetre angle iron attached to the main frame of the palletiser tube measuring approximately 120 millimetres high x 80 millimetres wide, which was located on each end of the control panel. · Access to the rear control panel was gained from the middle section underneath the platform measuring approximately 1.8 metres wide and 1.6 metres high. · A second control panel was located at 90 degrees to the main panel. The two 45 millimetre x 45 millimetre angle iron frames that the panel sat on measured approximately 1.3 metres long x 500 millimetres apart. The frame was approximately 260 millimetres off the floor to the bottom of the angle iron.

· The area behind both control panels measured approximately 1.2 metres wide and 1.02 metres in length which was the area identified as that in which an incident involving the worker had occurred on 22 January 2004. · Located underneath the roller conveyor was a track arm with the push bar for the boxes located on top to push boxes onto the adjacent pallet. · The arm was driven by an electric motor identified as a SEW Eurodrive Pty Limited, type number S52DT80N4BMG serial number 201059340/6.01.2002, Kw0.75 S1, RPM 1380/28 and was attached to a gearbox. · The gearbox was an SEW Euro, type S52DT80N4BMG, serial number 201059340/6.1.2002, RPM 28. · The motor and gearbox were located approximately 1.95 metres off the floor. 1.66 millimetres off the railing of the control panel and 300 millimetres from the rear of the main control panel. · The gearbox had a linkage attached to a bar that went to the push bar's track. The track bar measured approximately 1.3 metres long x 100 millimetres wide x 35 millimetres high. The arm from the gearbox was attached to the slide track underneath the track bar. · The slide track was made from two lengths of square metal and measured approximately 20 millimetres square and 800 millimetres long and 40 millimetres apart. · At the time of inspection the track bar was located in a position behind the main control panel where the gap to the rear of the control panel and the track bar measured approximately, horizontally 150 millimetres, diagonally up 130 millimetres and diagonally down 135 millimetres. · The distances between the track bar and the rear of the main control panel when the track bar was in the home position measured approximately, horizontally 65 millimetres, diagonally up 65 millimetres and diagonally down 110 millimetres. · The track bar below the roller conveyor with the attached box push arm ("the sweeper arm") above the roller conveyor took approximately three seconds to stroke from the home position out and back to the home position. · A double electric beam adjacent to the outside perimeter restricted access to the area adjacent to the palletiser from the northern end of the platform. A plastic screen to prevent access to the area where the tracking arm was located also closed access to the area underneath that end of the platform. · The area above was covered by a piece of sheet metal preventing access to the movements of the tracking arm. A sign 'Danger Moving Arm Above' with an arrow was written in black marker on the electrical tray adjacent to the track bar. [7] Prior to 7.45am on 22nd January 2004, there had been a number of blockages on the machine. [8] At all material times when such a blockage occurred on the machine, if an alarm light went on, one of the employees working on the packaging floor would go to the machine and clear the blockage and reset it and where necessary clear the boxes from it. [9] On one of the earlier occasions prior to 7.45am on 22 January 2004, the worker himself had already cleared the boxes on at least one occasion and then reset the machine. [10] At about 7.45am on 22 January 2004 the alarm activated on the machine again because of a blockage and at this time the leading hand, Eyzirya Awraham, went and cleared the boxes and reset it. At the same time however, the worker went to the machine also but to a different area underneath in order to try and close the valves that control the sweeper arm for the machine. [11] When the leading hand opened a door to clear the boxes, the sweeper arm was in the forward position. Having cleared the boxes the leading hand then reset the machine and the sweeper arm then reverted to its home position while the worker was within the confines of the machine attempting to adjust the valves. When the sweeper arm reverted to its home position, the worker's head and right shoulder were caught between the sweeper arm frame and the adjacent frame of the platform and control panel. [12] At some time prior to 22 January 2004 there had been a fixed guard in position to prevent access into the area where the sweeper arm was situated. This guard however had been removed some considerable time before the accident.

[13] Some time prior to 22 January 2004 a sign in black texta colour had been written on a conduit attached to the framework of the machine indicating the following:

' Danger - moving arm above' . This warning was referring to the sweeper arm. [14] When the worker was trapped by the sweeper arm of the machine, he immediately shouted for help, at which point the leading hand then realised that the worker was in the machine and stopped the machine and went to try and free him. It then took some 25 minutes to extricate the worker from the machine as certain parts had to be disconnected from it in order to do so. 5 In addition to the agreed statement of facts, the prosecution has tendered, without objection, an indexed bundle of documents including a copy of SOP 16.5 Longlife Palletiser Procedures, dated 30 July 2003. 6 Also tendered by the prosecution, without objection, were a number of photographs taken by Inspector Donna Cooper, which illustrate the site of the accident as well as the nature of the machinery involved in the incident. 7 The defendant's prior conviction record is also before me. That record discloses four relevant prior convictions. Those prior convictions enliven the previous offender provisions of s 12 of the Act.

8 On behalf of the defendant, the following affidavit material was tendered: (a) Affidavit of Ronald John Beveridge. Mr Beveridge is employed by Australian Co-operative Foods Limited as a Plant Electrical Engineer at its Wetherill Park premises. In this role, Mr Beveridge is responsible for high level electrical support for electricians, electrical programming and graphic interfacing. He is also a qualified Electrical Fitter Mechanic and has undertaken a post trade course in Industrial Electronics. In his affidavit, he outlines what occurred on the day of the accident involving the injured employee. He also deposes as to actions taken by the defendant subsequent to the accident. (b) Affidavit of David Hansen. Mr Hansen is the Operations Manager for Australian Co-operative Foods Limited at its Wetherill Park and Hexham factories. In his affidavit, he outlines the layout of the defendant's business at the Wetherill Park facility and the type of business which is conducted there. He also deposes as to the defendant's OHS management system. (c) A second affidavit of Mr Hansen was also tendered, dated 2 February 2001. That affidavit expands on paragraph 5 of Mr Hansen's first affidavit and details the employee induction programme, which educates Dairy Farmers' employees about the general site safety rules. It also sets out other training provided to employees such as Risk Assessment and Risk Management. 9 No oral evidence was received in the course of these proceedings. Relevant principles 10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 13 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

14 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at 62 - 63. 15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 60-61. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: … it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 18 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added)

19 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 20 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. General considerations 21 The defendant has prior convictions, and as such, the maximum penalty that can be imposed is $825,000. 22 The Full Bench in Capral held at 650 that 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. 23 It was imperative that the defendant had in place a safe system of work that was communicated and understood by its employees for regular tasks presented by the longlife palletiser, such as clearing jammed cartons from the machine. Additionally, the defendant owed an obligation to ensure that risk assessments were undertaken to ascertain that the machine itself did not present a risk to the safety of its employees. 24 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 25 The defendant was aware that the machine became jammed on a regular basis. Once a blockage was cleared from the machine, it was necessary to re-set the machine. This task was typically undertaken from a panel about 1.62 metres above the ground. The height and size of the palletiser was such that it was not possible to ascertain if the machine was free from human presence. The Standard Operational Procedure (SOP) 16.5 clearly contemplated that risk. Under the heading 'Set Up', the SOP stated: IMPORTANT NOTE: Before using the RESET button walk around the machine and make sure no one is on or in the machine. CALL OUT LOUDLY "IS IT CLEAR'. (emphasis added)

26 The need to call out was again highlighted under the procedures for clearing the machine when it jammed, which stated: When the palletiser becomes jammed: · Press EMERGENCY STOP button · Open gate, change roll and shut gate · RESET. Check no one is in the machine, call out loudly to ensure all is clear. (emphasis added).

27 The instruction to call out and ensure the machine was clear was not followed by Mr Awraham who was the worker who re-set the machine on the day of the incident. The risk to safety presented by the failure to call out and check that the palletiser was clear was heightened by the lack of guarding underneath the machine, which enabled Mr Danyal to access the machine.

28 It was agreed between the parties that the particular guard had been missing for at least six months. 29 Following the accident and to its credit, the defendant undertook an exhaustive investigation into the accident. The investigation confirmed that the failure to follow a safe work procedure and the lack of guarding were contributing factors to the accident. As well, the report attributed the failures by the defendant's employees to adhere to safe working procedures as set out in SOP 16.5 as a 'reflection of the safety culture at the site'. The report noted that the training records of the two employees involved in the accident did not show that either were familiar with SOP 16.5. Other behaviour attributed to what was described as the 'immaturity of the site safety program' was Mr Danyal's failure to isolate the machine while undertaking work inside the palletiser as well as failing to recognise the danger posed by climbing inside the palletiser while it was still operational. 30 Additionally, 'absent or ineffective' risk management and hazard identification processes were also identified as a contributing factor to the accident. A safety audit on the palletiser had not been conducted since January 2001. Regular safety walks required to be conducted by supervisors and managers to identify hazards and poor safety behaviour on site and which had been carried out between November 2003 and January 2004 failed to identify or replace the missing guard. As deposed by Mr Beveridge, the missing guard was not 'readily apparent unless an observer goes under the machine and looks upwards'. Nevertheless, the failure of the defendant's management to note the absence of the guard and have it replaced was inadequate and fell short of its duty as an employer. Clearly the defendant should have undertaken risk assessment procedures thoroughly and on a regular basis. It should have also ensured that its employees were familiar with the need to undertake formal risk assessment before undertaking any task such as that being undertaken by Mr Danyal on the day of the accident.

31 The safety walks also failed to formally identify the practice of getting under the palletiser to conduct work as a hazard. Although operators had written "danger - moving arm ahead" on the frame of the palletiser, warning of the possible risk of entrapment, there was no formal process to enable workers to identify that practice as a hazard or to report that the guard was missing. Overall, the deficiencies in the risk management process in identifying the missing guarding created an unsafe work environment, which culminated in the injuries that befell Mr Danyal.

32 In view of all of the above, a foreseeable risk to safety was clearly present in the operation of the palletiser. 33 In submissions as to the objective seriousness of the accident, counsel for the defendant submitted that the offence was at the lower end of the scale. In support of that submission he stated that no evidence was tendered to suggest that there were prospects of more serious injuries arising from the incident, other than the relatively minor ones suffered by Mr Danyal. In support of that submission, it was noted that the prosecutor had not put forward evidence to suggest that the sweeper arm operated with such force or had dangerous attachments such as sharp metal edges, both of which would have posed life threatening risks to Mr Danyal. Counsel pointed to the consequences of the accident, noting that Mr Danyal was absent from work for a total of two days as a result of the accident and that he suffered relatively minor injuries. 34 I accept on the basis of the evidence it is unclear if the sweeper arm would have continued to crush Mr Danyal or if it would have stopped operation or "bounced back" to its default position when it became jammed. However, the primary consideration in considering the objective seriousness of an offence is the presence of the risk to safety rather than the resultant injuries: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 432 at 452 where the Full Bench said: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 35 Given the matters already canvassed, the risk to safety was clearly foreseeable.

36 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 37 Following the investigation, the defendant took steps to retest all safety switches on the machine, fix the program to allow gate operation from the control panel and communicate that to all palletiser operators. As well, the defendant immediately decommissioned the palletiser to conduct a full risk assessment audit and replace the missing guard. All those steps were done promptly. 38 The defendant also implemented short term and long term corrective steps to improve its safe work system and risk assessment management program in accordance with a timetable. 39 The defendant addressed the deficiencies revealed in the investigation of its risk assessment procedures by standardising its approach in conducting risk assessments, ensuring all employees use the safety hazard reporting system, reviewed safety awareness training, and conducted safety walk re-training for managers and supervisors. 40 The defendant improved the safety of the system of work for the palletiser. Additionally, the defendant took steps to ensure the proper training of fitters and operators to safely clear carton blockages from the palletiser and developed a new training package for fault finding on the palletiser. As well, the defendant reduced the need for individuals to enter the palletiser to clear blockages by working on the cause of blockages such as packaging quality and equipment performance and by having regular guard audits for the entire site. 41 Prior to the accident, the defendant did have in place a comprehensive occupational health and safety program. If anything, what Mr Danyal's accident did was to highlight a failure of the defendant to observe and follow through in relation to established safety rules. The defendant has now reviewed and improved that programme as to risk assessment procedures, a safety behaviour program and general site safety rules. The general site safety rules address safety behaviour and risk management, equipment safety and isolation danger tagging. As well, prior to undertaking work on the floor, new employees are now required to pass a written exam, which covers all aspects of the general site safety rules. 42 The breadth and extent of remediation undertaken by the defendant is to be commended. It is, of course, all work that was able to be undertaken prior to Mr Danyal's accident. Nevertheless, the defendant's actions, particularly the thorough investigation into the accident, demonstrate an ongoing commitment to the occupational health and safety of it's workers.

43 Considering all of the above in addition to submissions received, I assess the offence as being in the mid-range of seriousness and will assess penalty on that basis.

44 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

45 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

46 General deterrence is a relevant consideration in this instance. The defendant operates in an industry where the risk to workers' safety is a real and continuous concern.

47 Specific deterrence is also a relevant consideration. The defendant continues to conduct it's operations utilising the type of machinery involved in Mr Danyal's accident. Those considerations should be tempered to take into account the defendant's significant and commendable steps to address safety concerns at its place of work. 48 The defendant has prior convictions under the Occupational Health and Safety Act: (i) 25 January 2000 OHS Act 1983, s. 15(1): Guarding not maintained, resulting in fingers trapped in foil transfer and conveyor belt and lacerations to fingers of worker. Fined $6,000. (ii) 31 March 2000 OHS Act 1983, s. 15(1): Injury from packing machine. Safe system of work. Fined $10,000. (iii) 6 April 2004 OHS Act 1983, s. 15(1): Failure to maintain safe means of egress/access to loading dock. Fined $12,000. (iv) 10 September 2002 OHS Act 1983, s. 15(1): Waste plastic deposited under conveyor chain belt. Employee entered danger zone while it was moving. Machine generally well-guarded but that part of the machine was not. Risk of access and potential for injury. Fined $3000. 49 Counsel for the prosecutor acknowledged that not all of the prior convictions were factually similar to the present matter except for the offence dealt with on 10 September 2002. As the brief details above would indicate, that offence involved somewhat similar factual circumstances to the one before me. 50 Although not raised on behalf of the prosecutor, it is relevant to observe at this point the extent to which prior convictions may be considered an aggravating feature of the offence for the purpose of penalty. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides:

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (d) the offender has a record of previous convictions, ... 51 As well, s 21A(4) of that Act provides: The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. 52 The Court of Criminal Appeal dealt with this issue in R v Brett Walker [2005] NSWCCA 109 where Johnson J (Giles JA and Hoeben J agreeing) said: [27] Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s.21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31): "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'." [28] The applicant submits that the sentencing judge erred in treating the applicant's record of prior convictions as an aggravating factor in this case. Counsel for the applicant submits that the record was relevant, but was not a factor which aggravated the offence. It was pointed out that, despite the applicant's lengthy criminal record, he had only one prior conviction for supplying a drug and that was in 1983. Further, it was noted that at the time of his arrest in June 2003, he had been out of custody for more than three years and had been convicted of only two offences, both of which were dealt with by way of fines. [29] Apart from a recital of the applicant's criminal record, and a reference to the applicant's concession that his criminal history was "appalling", the only reference to the applicant's criminal record by the sentencing judge was that contained in the passage set out in paragraph 25 above. [30] The Crown submitted that, applying Veen (No. 2) , the applicant's criminal record, which included convictions for possession, use and supply of prohibited drugs, was such that personal deterrence had to be given more significance than would otherwise have been the case: R v Berg [2004] NSWCCA 300 at paragraph 29. It was submitted that the applicant had not demonstrated that the sentencing judge's treatment of his criminal record was otherwise than in accordance with the applicable principles. [31] I am not persuaded that error had been demonstrated in this case in the use by the sentencing judge of the applicant's criminal history. As in Berg , there were parts of the applicant's criminal history which the sentencing judge would have been entitled to take into account in accordance with the principles in Veen (No. 2) . [32] It should be observed, however, that a passing reference to s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s.21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender's criminal history is not capable of attracting the principles in Veen (No. 2) , error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender's criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion. 53 To the extent the defendant's prior convictions are before me, I do not consider they should be relied upon to increase the objective seriousness of the offence before me but rather as a factor relevant to considerations of specific deterrence in accordance with the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. 54 On behalf of the defendant it was submitted that, in all the circumstances, it had a good safety record given that it operated twenty four hours a day, seven days a week with a total of 236 employees at that particular worksite. It should be noted that, overall, the defendant operates throughout Australia with five sites in New South Wales. 55 The prosecutor acknowledged in submissions that the defendant entered its plea at the first available opportunity and is entitled to a discount on that basis. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent. 56 There are a number of subjective factors that further operate in the defendants' favour. In addition to the comprehensive remedial efforts as detailed above, the defendant has cooperated fully with WorkCover in its investigation into the matter. Further, the defendant has taken the accident very seriously and commendably recognises it's responsibility for the failings and acted accordingly. It appears to me that the defendant has made all conscious efforts to ameliorate any defects in its risk assessment and safe work systems. 57 Considering those subjective factors identified, a further discount on penalty is warranted. 58 I should add one final comment. On behalf of the defendant, it was submitted that the nature and quality of this offence was such that the matter should have been dealt with before the Chief Industrial Magistrate in the Local Court where the maximum penalty is $55,000 rather than invoking the higher maximum penalty that bringing the proceedings before this Court establishes. 59 Such a submission is misconceived. In the first instance, the decision as to where to initiate proceedings is a matter for the prosecutor. Second, the Chief Industrial Magistrate must, in dealing with a corporation, take into account the maximum statutory penalty applying to the offence. Section 105(2) of the Act prescribes a jurisdictional limit and not a maximum penalty for any offence heard in the Local Court: see R v Doan (2005) 50 NSWLR 115. 60 Taking into account all the matters I have referred to, I determine a penalty in this matter of $105,000.

61 I make the following orders: (1) The defendant is guilty of the offence charged. (2) I impose a penalty in this matter of $105,000. (3) I allocate a moiety to the prosecution on the usual terms. (4) I order the defendant pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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