The second level of failure of the system is a failure in such system as there should have been and it would seem on the evidence that the defendant has tendered today that there was an instruction coming down the chain from the supervisor, Mr Parovel, to the workmen.
25 Mr Skinner referred to my decision of 17 September 1999 in Broomham v BHP Steel (AIS) which concerned the same defendant and he adopted the principles contained therein (at pp 25-26) as to the proper approach to sentencing. For convenience in this case, I repeat them thus :
Given that the maximum penalty for the instant offence is $750,000 as providing for the worst case, it seems clear to me on the settled authorities that in assessing penalty I am required to do so by reference to the objective seriousness of the offence in terms of its relative seriousness to a worst case: see Camilleri's Stock Feeds Pty. Limited v. Environment Protection Authority (1993) 32 N.S.W.L.R. 683 at 698 per Kirby P., as he then was, as applied recently in Tuckley v. The Crown in Right of the State of New South Wales (Department of Community Services) (unreported, Hungerford J., IRC97/7324, 7 September 1999 at pp.22-23). In that respect, however, and again as Kirby P. suggested in Camilleri's Stock Feeds (32 N.S.W.L.R. at p.698) - "The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender". But, as was observed by me in WorkCover Authority of New South Wales (Inspector Dowling) v. Overtop Pty. Ltd. (1998) 86 I.R. 319 at 333 and cases cited therein, "subjective considerations going to mitigation are necessarily subsidiary to the objective factors of the nature and quality of the offence". The applicable principles to follow in the sentencing process were, with respect, conveniently collected by a Full Bench (Wright J., President, Walton J., Vice-President and Peterson J.) of the Court recently in Fletcher Construction Australia Limited v. WorkCover Authority of New South Wales (Inspector Fisher) (1999) 90 IR 66 at 77-81 and where their Honours' earlier decision in Lawrenson Diecasting Pty. Limited v. WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 91 IR 464 at 472-472 was affirmed. I have had recourse to those authorities in considering the present task.
26 Further in relation to the decision in Broomham v BHP Steel (AIS) , Mr Skinner and Mr Timbs were on common ground, as Mr Skinner said, that I have in this case "received much the same assistance as … received in that case" so that if I were "to adopt some of [my] findings in the previous case [counsel] make no submissions to the contrary". Although not expressly identified by Mr Skinner, I agree that certain findings, or rather approaches in the sentencing process, made in that previous case are indeed reasonably open on the evidence to apply in the present case - both cases have as the particular detriment to safety the defendant's failure to ensure that a safe system of work was complied with. In Broomham v BHP Steel (AIS), the relevant failure of the defendant was not to ensure rail wagons not parked in a stable location were secured by handbrakes and chocks so that they moved and fatally crushed a shunter; in this case, the defendant failed to ensure the safe release of pressure from the oxygen pipe so that Mr Balding, albeit for some inexplicable reason or mere inadvertence, was able to remove the victaulic coupling and so be fatally struck by it from the considerable pressure thus released.
27 It is timely to note that immediately following the incident the defendant ceased steelmaking operations to communicate the nature of it to all employees in the Slabmaking Department. Measures were taken, as para 24 of the agreed statement of facts said, to ensure safety in future in the following manner :
The defendant implemented changes to the work procedures for water leakage testing of oxygen lances and also has produced the procedures in a documented format. This document clearly sets out all the necessary safety precautions that must be in place to allow for a test to proceed and also sets out in a diagram those necessary steps. The test which was undertaken on 12 December 1996 is no longer employed and has not been utilised since the accident.
28 Mr Timbs approached the matter of penalty in his final submissions on the basis of the proposition "that the reason for Mr Balding doing what he did is incomprehensible … he embarked upon a course which was ex facie hazardous in circumstances where other people including his predecessor in the job, Mr Exposito, … wouldn't have gone anywhere near that pipe because of the danger involved in the pressure". I too share Mr Timbs' question as to the conduct of Mr Balding in removing the victaulic coupling when, on Mr Mellado's evidence, the only task of Mr Balding was to turn off the water supply at the inlet end of the oxygen pipe leaving it to Mr Mellado to release the pressure at the outlet end by gouging a hole in the blank steel plate, a method considered safe by Mr Hinds.
29 Nevertheless, and as Mr Timbs properly conceded, that circumstance goes to penalty in assessing the qualitative seriousness of the detriment to safety otherwise existing. That detriment, identified and accepted in the affidavit evidence of Mr Whelan, was the failure of the defendant to explicitly settle with the employees concerned the system of work to follow with safety in what was a non-standard procedure used for the first time. The action taken by the defendant after the tragic incident in no longer using the particular test and by specifying the procedures to be followed for water leak testing of oxygen lances, including all necessary safety precautions, amply demonstrates the objective seriousness of what occurred. True it is the incident would not have occurred if Mr Balding had not proceeded to the inlet end of the pipe and, for some unknown reason, unscrewed the victaulic coupling when Mr Mellado told him he (Mr Mellado) was going to release the pressure.
30 Inattention or mere inadvertence of an employee only serves to show the need for an employer in ensuring safety to be astute in meeting all reasonable contingencies. This concept, in my view, is the measure of the real culpability of the defendant in this case where almost a "one-off" situation arose to be dealt with away from, as the evidence showed, the defendant's well and long-established procedures for the water testing of oxygen lances in a safe manner. The remedial steps taken so promptly by the defendant represented, I think most importantly in its favour and consistent with its policy to safety in the workplace, a clear example of its endeavours to ensure safety requirements are met. In that sense, it does not seem to me that factors going to deterrence weigh heavily in the sentencing process.
31 In all the circumstances, I consider the essential nature and quality of the subject offence to be in the lower quartile of the range of culpability.
32 In terms of mitigating what might otherwise be a penalty consistent with the degree of culpability found, I am of the view that the subjective factors for this defendant, as set out in the evidence, call for a significant reduction. As I found in Broomham v BHP Steel (AIS) (at p 22), and confirmed in this case, the statistics of the defendant's safety performance in recent years "give cogency to the defendant's occupational health and safety policies and manifest a responsible attitude supported by an effective safety programme". The defendant is entitled, in my view, to receive due credit for that as reflected in the penalty to be fixed.
33 With one exception, I repeat the following finding in Broomham v BHP Steel (AIS) as being entirely applicable to the instant case :
The factors subjective to the defendant, in my view, call for a sizeable reduction in the penalty otherwise applicable. Primarily in that respect, I have in mind the considerably improved safety performance of the defendant over the period from 1995 to 1999, particularly in the rail operations area of the steelworks, and its undoubted good-standing as an industrial and corporate citizen. The defendant's commitment to occupational health and safety issues, as evidenced by its stated policy and safety performance, I think, also are in its favour in terms of mitigation. The defendant entered an early plea of guilty, it was acknowledged by the prosecutor to have "fully and frankly co-operated in the investigatory process" and it has implemented remedial action to prevent a recurrence. In the result, I am of the view that those factors operate to significantly reduce what the penalty might otherwise be.
34 The exception relates to the plea of guilty, always a most relevant factor in determining penalty, which, unlike in Broomham v BHP Steel (AIS) , was entered quite late. Indeed, the plea was only changed on the Friday before the 3-day defended hearing was due to commence on the Monday. Given that a defendant is entitled to full consideration for an early plea of guilty, the lateness of the plea here must result, I think, in only minimal credit being allowed. Even so, the defendant's case at the hearing was conducted with full co-operation, frank acknowledgement of its failure and, importantly, the provision to the Court of factual material which facilitated proper consideration of the issues.
35 It is to be noted also, having in mind the fine of $65,000 imposed in Broomham v BHP Steel (AIS) and therefore endeavouring to provide some parity in the sentencing of this defendant, that here the offence was committed about 6 months later.
36 I find the charge proven and enter a verdict of guilty against the defendant. I am of the view that an appropriate penalty is a fine of $80,000.
37 I order that the defendant is convicted of the subject charge and that it is fined an amount of $80,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor's costs.