WorkCover Authority of New South Wales (Inspector Robinson) v Bosnjak Holdings Pty Limited and anor

Industrial Relations Commission (NSW)|1998-04-08|Before: Staunton J, Fisher P, Goot AM

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Robinson) v Bosnjak Holdings Pty Limited and anor [2002] NSWIRComm 295 PROSECUTOR: Inspector Peter Robinson PARTIES : DEFENDANTS: Bosnjak Holdings Pty Limited Westbus Pty Limited FILE NUMBER: IRC 779 and 780 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - known and foreseeable risk of injury - objective seriousness of offence - corporate structure of defendants relevant to sentencing principles of totality and parity - general and specific deterrence - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 s 16 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Haynes v CI & D Manufacturing Pty Ltd and anor (1995) 60 IR 455 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Moore v EW Cox Pty Ltd (1990) 37 IR 145 CASES CITED : Postiglione v The Queen (1997) 189 CLR 295 R v Thompson, R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Ankucic) v MacDonald's Australia Limited and anor (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 WorkCover Authority of NSW v Nicholson's Air Service Pty Ltd and anor (unreported, Fisher P, 8 April 1998) WorkCover Authority of NSW v Sarkem Ltd and anor (unreported, Fisher P, 27 February 1998) HEARING DATES: 10/29/2002 DATE OF JUDGMENT: 11/12/2002

PROSECUTOR: Ms A F Backman of Counsel SOLICITORS: Legal Group WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT: Mr R Goot AM SC SOLICITORS: Blake Dawson Waldron

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J 12 November 2002

Matter No. IRC 780 of 2002 WorkCover Authority of New South Wales (Inspector Robinson) v Bosnjak Holdings Pty Ltd Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983

Matter No. IRC 779 of 2002 WorkCover Authority of New South Wales (Inspector Robinson) v Westbus Pty Ltd Prosecution under s 16 (1) of the Occupational Health and Safety Act 1983

1 On 16 February 2000, Mr Salvatore Perugini was a bus driver employed by the first defendant. He went to the Bonnyrigg bus depot owned by the first defendant to refuel his bus. The bus was operated by the second defendant. While his bus was being refuelled he went to the rear of the bus to check the engine oil. To do this he raised the engine cover.

2 A second bus being driven by Mr Pero Jovic was in a queue behind Mr Perugini's bus waiting to refuel. While Mr Perugini was standing at the rear of his bus checking the oil, Mr Jovic drove his bus forward towards Mr Perugini and his bus.

3 In doing so, Mr Jovic failed to apply the brakes of his bus in time. His bus crashed into the back of Mr Perugini's bus, pinning Mr Perugini between the two buses. As well, when Mr Jovic reversed his bus to release Mr Perugini, the engine cover swung down and struck Mr Perugini on the head.

4 Mr Perugini was conveyed to hospital and died later that day as a result of the injuries sustained.

5 As a result of the accident, the two defendants were respectively charged with offences in the following terms:

First defendant (Bosnjak Holdings Pty Ltd): FAILED TO ensure the health and safety and welfare at work of all its employees, in particular Salvatore Perugini, whilst undertaking refuelling and oil checking of buses, at the Bonnyrigg Depot, situated at 9-19 Bonnyrigg Avenue, Bonnyrigg, in the State of New South Wales, contrary to section 15(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge are: a. At all material times the defendant employed a number of persons, including Salvatore Perugini. b. At all material times the defendant owned premises at Bonnyrigg Westbus Depot, situated at 9-19 Bonnyrigg Avenue, Bonnyrigg in the State of New South Wales (the said premises). Westbus Pty Ltd operated a bus depot at these premises. c. At all material times the defendant had a number of employees working out of the Bonnyrigg Depot, operated by Westbus Pty Ltd, at 9-19 Bonnyrigg Avenue, Bonnyrigg. d. At all material times Westbus Pty. Ltd owned and operated Mercedes bus registration number MO 7744 and Mercedes bus registration number MO 7650. e. At all material times the defendant's employees operated the above Mercedes bus registration numbers MO 7744 and MO 7650. f. The defendant failed to ensure that a safe system of work was provided to its employees, as was necessary to ensure their health and safety, whilst refuelling and carrying out oil checks of buses at the said premises. g. The defendant failed to ensure such adequate supervision as was necessary was provided to employees to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. h. The defendant failed to ensure such adequate information as was necessary, was provided to employees, to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. i. The defendant failed to ensure such adequate instructions as were necessary were provided to employees to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. j. The defendant failed to ensure such adequate training as was necessary was provided to employees, to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. k. As a result of the said failures Salvatore Perugini was placed at risk of injury.

Second defendant (Westbus Pty Ltd): FAILED TO ensure that persons not in its employment, in particular Salvatore Perugini, were not exposed to risk to their health or safety arising from the conduct of its undertaking while they were at its place of work, whilst persons were undertaking refuelling and oil checking of buses, contrary to section 16(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge are: a. At all material times the defendant was an employer. b. At all material time the defendant operated a private bus company out of premises known as the Bonnyrigg Depot at 9 -19 Bonnyrigg Avenue, Bonnyrigg, (the said premises). c. At all material times the defendant owned and operated Mercedes bus registration number MO 7744 and Mercedes bus registration number MO 7650. d. The defendant failed to provide a safe system of work, to persons not in its employment, for the refuelling and carrying out of oil checks of buses at the said premises. e. The defendant failed to maintain a safe system of work, to persons not in its employment, for the refuelling and carrying out of oil checks of buses at the said premises. f. The defendant failed to provide such adequate supervision as was necessary, to persons not in its employment, to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. g. The defendant failed to provide such adequate information as was necessary, to persons not in its employment, to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. h. The defendant failed to provide such adequate instructions, to persons not in its employment, as were necessary to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. i. The defendant failed to provide such adequate training as was necessary, to persons not in its employment, to ensure their health and safety whilst refuelling and carrying out oil checks of buses at the said premises. j. As a result of the said failures Salvatore Perugini was placed at risk of injury.

6 On 8 August 2002 both defendants entered a plea of guilty to the offences as charged.

7 In the hearing before me, the prosecution tendered an agreed statement of facts relevant to both offences together with a factual inspection report and ten photographs. The photographs identified the location of the accident and relevant aspects of the engine at the rear of Mr Perugini's bus as well as the petrol bowser at the Bonnyrigg depot.

8 Both defendants have no prior convictions. Accordingly the maximum penalty for each offence is $550,000.

9 An agreed statement of facts relevant to both offences was admitted into evidence in the following terms: 1. At all material times the First Defendant was the owner of premises at 9-19 Bonnyrigg Avenue, Bonnyrigg ("the Premises") and employed the following: (a) Salvatore Perugini, 34 years of age as bus driver/yardman. (b) Pero Jovic, 52 years of age as a bus driver. (c) Michael Robert Heard, 45 years of age as a depot manager. (d) Harry Allen Norton, 55 years of age as a yardman. Mr Norton was also the chairperson of the First Defendant's Occupational Health and Safety Committee. (e) Ronald Keith Malone, 53 years of age as a manager. (f) Andres Pachas, 45 years of age as a yardman. 2. At all material times the Second Defendant operated a private bus company out of the Premises and owned and operated: (a) Mercedes Bus registration number: MO 7744 (" Bus 1 "). (b) Mercedes Bus registration number: MO 7650 (" Bus 2 "). 3. On 16 February 2000, at approximately 5.45pm, Salvatore Perugini was crushed between Bus 1 and Bus 2 whilst he was attempting to check the engine oil of Bus 1 at the Bonnyrigg Depot. 4. Prior to the accident, Bus 2 had been driven into the yard by Pero Jovic and parked behind Bus 1 where it waited in a queue to be refuelled and have its oil checked. 5. Immediately prior to the accident, Salvatore Perugini had brought Bus 1 forward from the queue of buses to the yard's fuel bowser. 6. Salvatore Perugini then turned the engine of Bus 1 off and placed the nozzle of the fuel pump hose into the fuel tank at the side of Bus 1. He left the fuel pump hose on auto cut-out and moved to the rear of Bus 1 to check the engine oil. 7. At the rear of Bus 1, Mr Perugini raised the engine hatch cover to access the oil dipstick. The hatch cover was fitted with gas struts which held the hatch cover up when it was in the raised position. 8. Mr Jovic has stated that: (a) there was a distance of one bus length between Bus 1 and Bus 2 whilst Mr Perugini was refuelling Bus 1; (b) whilst Bus 2 was in the queue, waiting to be refuelled, he commenced cleaning Bus 2 and closing the windows and roof hatches on the bus. He then noticed Mr Perugini working at the back of Bus 1. He got into the driver's seat of Bus 2 to move the bus forward. He disengaged the brake and placed the bus into gear to move forward. When he was approximately a couple of metres from the rear of Bus 1 (which was in front of his bus), he panicked and missed applying the brake pedal. He crashed Bus 2 into the back of Bus 1, where Mr Perugini was working, pinning Mr Perugini between the two buses; (c) he then reversed Bus 2 to release the trapped Mr Perugini. When he did this the engine hatch cover on Bus 1 which had been pushed further up by the impact, swung down and struck Mr Perugini on the head. 9. Mr Perugini was conveyed to Liverpool Hospital by ambulance and died in the operating theatre at 7.00pm on that day. 10. Inspector Paul Kitchen attended the Premises on Thursday 17 February 2000 and carried out a factual inspection, a copy of which is annexed and marked with the letter " A ". Photographs of the site of the accident were also taken, copies of which are annexed and marked with the letter " B ". 11. Investigations revealed that buses were normally driven to a queue at the fuel bowser by the bus driver. There they would wait in the queue. The first bus at the head of the queue would be driven to the bowser by either the bus driver or the yardperson. 12. The bus would be stopped at the bowser. The yard person would then insert the nozzle into the fuel tank. The fuel tank contained an automatic fuel cut-off which allowed the yard person to leave the fuel nozzle unattended. 13. While the bus was being fuelled, the yard person would check the oil. Only rear engine buses such as the Mercedes bus involved in this accident have the oil dip stick at the rear of the bus. The dipstick was accessed by lifting the engine cover at the rear of the bus. 14. Drivers were required to clean the inside of their buses after they arrived at the depot. There was no procedure as to where to clean these buses. Some bus drivers would sweep their buses before they got back to the depot. Others would sweep their buses while they waited in the queue for the bus to be fuelled. The majority of the time this was done with the bus idling. 15. There was no operating procedure for the movement of buses in and around the yard at Bonnyrigg. 16. No instructions were given to persons working in the yard regarding the movement of buses into position at the bowser. It was common practice for drivers to move buses up towards the bowser while the bus in front was being attended to. 17. There were no recognised walk ways within the bus depot yard for pedestrians. 18. The Second Defendant did not have a manual outlining a depot procedure for people working in the yard. 19. The First Defendant did not provide to its employees a manual outlining depot procedure. 20. Buses fitted with turbo engines were required to idle for 2 to 3 minutes before switching off the engine. 21. The distance between buses queuing to be refuelled was determined by the drivers of the buses awaiting refuelling. For rear engine buses such as Bus 1 and Bus 2, it was normal practice when checking the engine oil for the yardman or driver to stand at the rear of the bus and in front of another bus if another bus was waiting in the queue. 22. No formal training was provided to drivers or yard people with regard to movement of buses in and around the yard, nor was any formal training provided with regard to the proper procedure for refuelling buses. 23. Since the accident, the First Defendant has: (a) introduced pedestrian walk ways; (b) erected signage notifying of pedestrian walkways; (c) provided stop signs; (d) provided safety vests; (e) reminded staff of the 5 kilometre speed limit within the depot; (f) issued a notice instructing drivers of the procedure to follow whilst fuelling at the bowser. This notice was given to drivers and put on the notice board; (g) instituted a procedure whereby the oil is now checked away from the bowser; and (h) issued instructions regarding procedures upon arrival at the depot.

10 Counsel for the defendant submitted two affidavits with annexures. The first affidavit was from Mr John Lee, the Managing Director of Bosnjak Holdings. The second was from Mr Mark Vale, the Safety Manager for Westbus, employed by Bosnjak Holdings.

11 Mr Lee's affidavit evidence, clarified by brief oral evidence, outlined the corporate relationship between the first and second defendants. This information is particularly relevant to the principle of totality as part of the sentencing process - an issue I will return to in more detail later in the judgment.

12 At this point however, I believe it is appropriate to comment on the corporate structure of the two defendants relevant to these proceedings.

13 The second defendant, Westbus Pty Limited (Westbus) is a wholly owned subsidiary of the first defendant, Bosnjak Holdings.

14 On the evidence of Mr Lee, the effect of that arrangement was, for the purposes of considering the matter before me: · Bosnjak Holdings was the employer of Mr Salatore Perugini, the deceased bus driver involved in the incident at the Bonnyrigg depot. Bosnjak Holdings was also the employer of Mr Pero Jovic, the other bus driver involved in the incident. · At the time of the incident involving Mr Perugini on 16 February 2000, Bosnjak Holdings owned the land and buildings which comprised the Bonnyrigg depot and the buses, the subject of the accident that operated from the Bonnyrigg depot. · The only practical involvement of Westbus in the operations of the Group was that the buses involved in the accident were registered in the name of Westbus because it was considered more appropriate to have the buses registered by the 'brand name' of Westbus for ease of identification. · All of the directors of Westbus are directors of Bosnjak Holdings Pty Limited, although Bosnjak Holdings has several additional directors who are not directors of Westbus. · Westbus has no operational management structure. The Board of Directors of Westbus meet only once per year to approve the financial accounts of Westbus. · The responsibility for managing and operating the Bonnyrigg depot was at all material times and remains that of Bosnjak Holdings. · Bosnjak Holdings, as the holding company of Westbus, will ultimately bear the financial consequences of any penalty imposed against it and/or Westbus.

15 By way of additional explanation in his evidence before me, Mr Lee stated that the two buses involved in the accident in February 2000 were "in the asset register of Westbus Pty Ltd, but for the profit and loss, they were with Bosnjak Holdings". The buses were registered in the name Westbus.

Relevant considerations 16 17 As always in matters such as this one must first start by having regard to the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474. As the statement of facts discloses at paragraph [11], the immediate cause of the accident on 16 February 2000 was when Mr Jovic decided to move his bus closer to Mr Perugini's bus while waiting in the queue to refuel. He panicked and missed applying the brake pedal.

18 That act does not immediately disclose the real cause of the accident before me. That is, the manner in which the defendants permitted and condoned the way in which the task of refuelling buses at the depot was being performed.

19 As paragraphs [18], [19], [20] and [21] disclose, there were no operating procedures, instructions, protocol manuals or any other employer sanctioned directions in place to ensure that the refuelling procedure for the defendant's buses was done in a safe and proper manner. In short, again by reference to the statement of facts, (paras [11], [12], [13], [14] and [21]), what had developed over the years was what can only be described as a very ad hoc procedure, seemingly developed amongst the drivers, perhaps for their own personal convenience. In any event, the refuelling and associated oil checking procedure was being undertaken in workplace circumstances that were not only inherently dangerous but, on any reasonable view, extremely primitive by contemporary workplace standards.

20 That such a conclusion is no exaggeration, one need go no further than the affidavit of Mr Mark Vale, the current safety manager for Westbus who is employed by Bosnjak Holdings Pty Ltd and has been since December 2001. Mr Vale has obviously put a completely new broom through the operational activities and policies of both the first and second defendant as far as occupational health and safety is concerned. Indeed, any objective consideration of the nature and quality of this offence before me would only have to have regard to the extent of remediation work undertaken by the first defendant to fully appreciate that what occurred at the Bonnyrigg depot on 16 February was an accident waiting to happen.

21 In my opinion, the risk of injury such as occurred to Mr Perugini in the incident before me was clearly foreseeable and renders the offence as being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 99 IR 29. As well, the consequences of that known and foreseeable risk reflect the gravity of the breach of the offence before me: Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

22 I conclude that the nature and quality of the offences before me are objectively very serious. 23 In accordance with the views expressed in Capral at pp 60 and 61, the principles of general and specific deterrence are applicable in this matter. In relation to specific deterrence, I note particularly the principles enunciated in para [77] which are particularly pertinent to the defendants before me. In other words, the defendants continue to be involved in the business of providing a bus service, the operation of which carries risks to the safety of its employees, contractors as well as passengers who use the services. In going about their business the defendants are required to maintain a constant vigilance and take all practical precautions to ensure safety in the workplace. Notwithstanding all of the remediation work undertaken following the incident before me, it will be necessary for the defendants to have regard to the need to encourage and maintain a sufficient level of diligence in the future, particularly given the large enterprise that the defendants are involved in, which involves inherent risks to safety: see WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at para [46]. Determination of penalty 24 Counsel for the defendants submitted that, in determining the penalty to be applied, it would be appropriate to have regard to the sentencing principles of totality and parity. 25 On the totality principle, counsel for the defendants saw as his starting point the decision of this Court in Haynes v CI & D Manufacturing Pty Ltd and anor (1995) 60 IR 455. 26 In that matter, CI & D Manufacturing Pty Ltd (Manufacturing) and CI & D Industries (Industries) were two related companies, prosecuted under ss 15 and 16 of the Occupational Health and Safety Act 1983 respectively. As in the case before me, the prosecutions arose out of a single accident and the same facts. 27 In considering the approach to be taken on the question of penalty in Haynes v CI & D, the Court considered whether the prosecution of the two "closely related companies" should attract one or two penalties. In considering this matter the Court ultimately determined: "We have come to the view on the evidence that the connection between the two companies was so intimate that it is permissible to view the offence in a global way." 28 Counsel for the defendants saw significant parallels as between the facts in Haynes v CI & D and the matter before me. For example, Manufacturing was a wholly owned subsidiary of Industries. Industries owned the premises where the accident occurred and was responsible for the direction and supervision of all employees at the premises, as well as employing management staff and having responsibility for the overall management of Manufacturing's business. Manufacturing was the employer of the injured employees at the time of the accident and there were common personnel as between the two corporate entities as to who bore the ultimate responsibility for ensuring the supervision of the employees at the time of the accident. 29 In the matter before me, Westbus is, and was at the time of the accident, a wholly owned subsidiary of Bosnjak Holdings. Bosnjak Holdings was the owner of the buses involved in the accident as well as the owner of the premises involving the accident, while the buses were registered in the name of Westbus and operated by it. Bosnjack Holdings was the employer of all employees at the Bonnyrigg depot and was responsible for managing and operating the Bonnyrigg depot. While Westbus was an employer at the time of the accident it did not employ any of the persons injured in the accident. Further, all of the directors of Westbus are directors of Bosnjak Holdings and Bosnjak Holdings employed the personnel responsible for ensuring the safety of the relevant employees at the time of the accident. As well, Mr Vale, the current Safety Manager for Westbus attested that, while his responsibility is for Westbus and other company entities related to Bosnjak Holdings, he is employed by Bosnjak Holdings. 30 For all of the above reasons, counsel for the defendants submitted that, as determined by the Court in Haynes, it would be both sensible and permissible to view the two offences before me from the perspective of totality and apply one penalty. 31 It should be noted that similar approaches to the question of penalty were adopted by Fisher P in WorkCover Authority v Sarkem Ltd & ICI Operations Australia Ltd (unreported, 27 February 1998) and see also WorkCover v Nicholson's Air Service Pty Ltd and Agair Development Pty Ltd (unreported, Fisher P, 8 April 1998). 32 Both matters involved offences under s 15 and s 16 of the Act and arose from the one incident involving, in the words of Moore v E W Cox Pty Ltd (1990) 37 IR 145 at 149, "essentially the same successive failures" and "therefore it would be appropriate to impose a single penalty." 33 The decision of Walton J VP, in WorkCover Authority of New South Wales (Inspector Ankucic) v MacDonald's Australia Limited and anor (2000) 95 IR 383 at 459 highlighted the anomaly with the above approach given that the underlying prerequisite generally encountered in applying totality in sentencing is that there is one defendant. This fact clearly underlies the principle of totality considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 and Moore v E W Cox Pty Ltd. 34 Notwithstanding the above considerations, Walton J clearly distinguished WorkCover v MacDonald's from the decision in CI & D, on the basis that the latter decision was founded on circumstances, "where both defendants had supervisory responsibility for the employees concerned" and that the decision in CI & D was "distinguishable from the factual circumstances" in MacDonalds'. 35 On a totality approach, the situation prevailing here is even more definitive when one has regard to the particulars of the offences as pleaded with respect to the two defendants. As can be quickly surmised by a perusal of them, they are pleaded in essentially similar terms. The first defendant's particulars are pleaded on the basis that it failed to ensure certain things in respect of its employees whereas the second defendant's failures are particularised as a failure to provide the same things to persons not being its employees. Indeed, the only distinguishing particular as between the two defendants is in relation to particular [e] concerning the second defendant in that, having the offence of 'failing to provide' particularised, sub paragraph [e] details a particular of 'failing to maintain' the specific particular - again in exactly similar terms to particulars pleaded in relation to both defendants. 36 On the facts before me, the two defendants are, for all practical purposes, one entity. This is particularly supported by the evidence of Mr Lee in relation to the second defendant, found in paragraph [14] above, that I repeat here by way of emphasis: "The only practical involvement of Westbus in the operations of the Group was that the buses involved in the accident were registered in the name of Westbus because it was considered more appropriate to have the buses registered by the 'brand name' by Westbus for ease of identification." 37 Counsel for the prosecution acknowledged that it was open to me to approach these matters by reference to the principle of totality and apply one penalty. In making that submission she stated, relevantly: " … it is open to the Court to impose one fine but there are some differences as well as strong similarities between the two corporate defendants before this Court for sentence." and further - "In my submission the similarities are quite significant such that it would be open to the Court to impose the one fine."

38 For the above reasons, and consistent with approaches earlier adopted by this Court that I have referred to, I consider it appropriate that I adopt the "common sense" approach and apply one penalty to the matters before me. 39 Counsel for the defendant further submitted that, in considering the penalty in the matter before me, the principle of parity should also be considered.

40 Given that I have just determined that I should treat the two defendants as one in applying the totality principle, it is difficult to see how the principle of parity, as strictly understood, applies here. 41 The principle of parity as part of the sentencing process is that co-offenders should receive the same sentence, if all other things are equal. Perhaps to put it in another way - parity is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: Postiglione v The Queen and see Sentencing Manual: Judicial Commission of NSW (2001) at 22. 42 In any event, in the matters before me, the pleas of guilty entered to the offences were pleaded on what I would describe as a 'like for like' basis. I have already commented on the common particulars as pleaded by the prosecution and the pleas of guilty entered by each defendant in relation to those offences on the basis of those particulars. It seems to me eminently sensible to find that, in entering the respective pleas to the offences as particularised, the defendants accepted a common culpability. I can see no significant differentiating circumstances such as to suggest that their degrees of culpability should be anything other than equally apportioned. Accordingly, the penalty that I impose will be equally apportioned between them. 43 There are additional considerations that require to be properly taken into account in determining the ultimate penalty in this matter. 44 In the first instance, the prosecution has acknowledged that the defendants have entered their plea at the first available opportunity. In accordance with the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, they are entitled to a discount for the utilitarian benefit of that plea and I determine a discount of twenty five percent should be allowed to properly acknowledge that. 45 There are also subjective features that I take into account in the ultimate penalty determination. Neither defendant has prior convictions. The corporate history of the two entities before me goes back to 1957 when the current services known as Westbus commenced operating under the name of Bowman's Bus Service. Bowman's Bus Service changed its name to Westbus on 7 January 1985. 46 Bosnjack Holdings commenced its operations on 19 October 1960 and currently employs some 316 staff, including drivers, yard persons, mechanics, cleaners, management and administrative staff. As a wholly owned subsidiary of Bosnjack Holdings, Westbus currently operates a fleet of 390 buses from various depots in NSW - predominantly in the outer western and north western suburbs of Sydney. 47 All in all, the defendant companies have an established record of operation. That there have been no prior convictions between them is clearly a factor that militates in their favour.

48 As well, the defendants under the overall direction of the first defendant, have undertaken significant remedial action following this incident. To start with a completely new bus depot has been built. It would seem that it was already under consideration prior to the accident in February 2000, but the accident and the circumstances in which it occurred certainly accelerated the decision to proceed with the project.

49 The rebuilding of the Bonnyrigg bus depot now renders it significantly safer, more streamlined and more operationally effective. As evidenced by the photographs placed before me, the new depot has a much safer and organised procedure for the refuelling of buses. For example, the entry of a bus to the actual refuelling location is now governed by the operation of appropriate traffic indicators before a bus is permitted to move forward into the refuelling part of the depot. There is no longer any backing up of buses in a queue in the rather ad hoc way that existed when the accident occurred in February 2000.

50 As well, the defendants have put in place proper safety programs and procedures together with training programs for their drivers. There has been a reinforcement of occupational health and safety responsibilities and new procedures for the reporting and investigation of incidents and accidents in order to highlight any potential safety incidents to allow the defendant to act proactively in removing those hazards. According to Mr Vale, the safety manager for Westbus, he is - " … of the view that a significant cultural change is taking place within Bosnjack Holdings and related entities, with a new and focussed approach to occupational health, safety and welfare. This commitment is evidenced by a number of initiatives including my recent appointment, the commitment of Bosnjack Holdings to the training scheme for all drivers and the continued development and implementation of the Westbus occupational health and safety program."

51 I am satisfied also that the defendants, in their overall responsibilities for the operation of Westbus and their employees, were genuinely remorseful and contrite following this incident. Immediately after the accident all of the other drivers of the first defendant at the Bonnyrigg depot contributed one day's pay to Mrs Perugini, and this amount was matched by the company.

52 Taking into account the subjective features I have identified, I allow a further discount of ten percent.

53 Overall, in assessing all of the issues before me, I determine the penalty for this matter in the first instance to be $220,000. Making the consequential adjustments flowing from the discounts I have determined leaves an overall penalty of $143,000. In apportioning that penalty equally between the defendants, I impose a penalty of $71,500 against each defendant in the matters before me. No. IRC 780 of 2002: WorkCover Authority (Inspector Robinson) v Bosnjack Holdings Pty Ltd:

In this matter, I make the following orders: · The defendant is convicted of the offence as charged; · I impose a penalty of $71,500; · I allocate a moiety to the prosecutor on the usual terms; · Leave is granted with respect to costs in the absence of agreement between the parties.

IRC 779 of 2002: WorkCover Authority (Inspector Robinson) v Westbus Pty Ltd. In this matter, I make the following orders: · The defendant is convicted of the offence as charged; · I impose a penalty of $71,500; · I allocate a moiety to the prosecutor on the usual terms; · Leave is granted with respect to costs in the absence of agreement between the parties. ______________________

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