Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales

HEARING DATES: 05/26/2000; 11/02/2000; 11/03/2000; 03/07/2001 DATE OF JUDGMENT: 12/06/2001

PROSECUTOR: Ms F Backman of counsel SOLICITOR: Mr G McCann Court and Legal Services Branch WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr G Phillips of counsel SOLICITOR: Ms L Rayner Legal Services Branch Department of Education and Training

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President 6 December 2001

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ANKUCIC) v CROWN IN THE RIGHT OF THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING). PROSECUTION UNDER SECTION 16(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983. Judgment [2001] NSWIRComm 313 Introduction 1 This matter concerns a prosecution by Inspector Petar Ankucic of the WorkCover Authority of New South Wales ("the prosecutor") of the Crown in the Right of the State of New South Wales ("the defendant") in relation to the Department of Education and Training alleging a breach of s16(1) of the Occupational Health and Safety Act 1983 ("the Act"). Section 16(1) of the Act imposes the obligation on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."

2 The prosecution arose from injuries sustained by a student, namely, Grant Maxwell Carpenter, at Kingscliff High School on 23 May 1997. On that day, Mr Carpenter attended the Industrial Arts class rooms at the school for the purpose of undertaking work on the construction of a dressing table that constituted his Year 12 Design and Technology project. When he arrived at the classroom, the industrial arts teacher, Mr Gregory Porter, advised Mr Carpenter to work on the construction of rails to hold draws that were to be fitted to the dressing table.

3 For this purpose, Mr Carpenter selected a piece of wood and proceeded to a circular saw bench available in the Major Projects room. He set and locked the saw bench and commenced to feed the timber through the saw using a push stick. When the timber had been fed through, an off-cut fell on the floor, whilst the remaining section of wood remained on the bench. When Mr Carpenter reached forward to recover the off-cut, the piece of wood made contact with the moving blade and deflected his hand into the path of the blade. As a result, Mr Carpenter sustained severe lacerations to his left thumb and the first, second and third fingers of this left hand. These events shall be described in this decision as "the accident".

4 The charge contained in the summons for prosecution was in the following terms: The defendant, being an employer, on 23 May 1997 at Kingscliff High School, Oxford Street, Kingscliff, in the State of New South Wales DID FAIL to ensure that persons not in its employment, in particular, Grant Maxwell Carpenter, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in such case made and provided.

1. The defendant failed to securely fence the blade of the TS-222 Woodman Circular Saw. 2. The defendant failed to provide such supervision, in the Major Projects Room of the said school, as may be necessary to ensure the health and safety of its students. 3. The defendant failed to provide such instruction and training, in the safe operation of the TS-222 Woodman Circular Saw, as may be necessary to ensure the health and safety of its students. 4. The defendant failed to provide or maintain a system of work for the inspection of the TS-222 Woodman Circular Saw prior to the saw's use by its students. 5. The defendant failed to provide such training to its Industrial Art's teachers in particular, Gregory Porter, in the safe operation of the TS-222 Woodman Circular Saw, as may be necessary to ensure the health and safety of its students.

6 Aside from the formal parts, the statement of agreed facts was in the following terms:

3. At all material times the first defendant was responsible for the operation and management of public schools in the State of New South Wales including the Kingscliff High School, situated at Oxford Street, Kingscliff, in the State of New South Wales (the "said school").

4. At all material times, Grant Maxwell Carpenter, 18 years of age, was a Year 12 student at the said school. 5. At 10.15am on 23 May 1997, Grant Maxwell Carpenter sustained severe lacerations to his left thumb, and the first, second and third fingers out of his left hand when they contacted with the unguarded blade of an electrically powered TS-222 Woodman Circular Saw (the "said saw") he was operating in the Major Projects room of the said school.

On 2 June 1997 Inspector Young conducted an inspection of the said school. Photographs were taken and a Factual Report compiled.

On 6 June 1997, the informant issued Improvement Notices No. 154777 - 154783 requiring, inter alia, the defendant to ensure that: (a) The guard on the said saw was fitted and properly adjusted at all times;

(b) Appropriate levels of instruction, training, information and supervision be provided to students required to operate the said saw.

At 9.50am on the day of the accident, Carpenter attended the Industrial Arts Class Rooms of the said school to collect and continue working on his Year 12 Design and Technology Project, namely the construction of a dressing table. Shortly after his arrival, he was advised by his supervising teacher, Gregory Porter, to make rails to fit into the drawers of the Project.

After collecting a suitable piece of timber, measuring 600mm in length, 70mm in width and 20mm in thickness, Carpenter proceeded to the Major Projects room (also known as the composite woodwork/ metalwork room). He took this option because the circular saw bench in the machine bay of the main woodwork classroom was set up by another student to carry out a different cut. He set and locked the saw bench fence of the said saw approximately 20 mm from the blade, turned the saw on, and commenced to feed the timber in using a push stick.

After feeding the timber through the saw blade, the 20 mm wide section fell onto the floor at the rear of the saw bench, whilst the 50 mm wide off cut remained on the top of the bench. Carpenter then reached forward with his left hand to recover the off cut. However, in doing so, the off cut contacted with the revolving saw blade and deflected his hand into its path, resulting in the injuries described.

At the time of the accident: (a) The blade was set approximately 30 mm above the top of the saw bench.

(b) The fabricated metal and plastic saw blade hood guard was resting on the non-cutting side of the saw bench fence.

(c) Porter had not inspected the said saw to ensure that the guard was fitted and properly adjusted before Carpenter used it.

(d) Mr. Porter was standing appropriately 10 metres away from Carpenter.

Porter at the time of the accident, had 29 years experience teaching woodwork to secondary school students, which included 20 years of teaching senior students.

On 6 August 1997, the prosecutor interviewed Paul Mattress, the defendant's Head Industrial Arts Department Teacher at the said school. It emerged from the interview that: (a) It was not common practice for teachers to inspect machinery immediately prior to students using it.

(b) It was normal procedure for teaching staff under his control to assume power driven machinery, such as saw benches, were safe to be operated by students without carrying out an immediate prior inspection. However, teaching staff utilised this machinery on a daily basis.

(c) Roving supervision was afforded to students required to operate power driven saw benches because students may be performing their duties in a number of different areas in the industrial arts complex at any given time.

In a memorandum titled - "Policy on the supervision of students" No.87/239, attached and marked annexure 'A', the defendant detailed, inter alia, that: (a) Supervision safeguards the welfare of all students through the promotion of a caring and ordered environment.

(b) Teachers must provide effective supervision for students.

(c) One factor to be considered when providing effective supervision is the type and nature of the activity being undertaken.

(d) Effective supervision also requires consideration to the age, maturity, nature and number of students involved in any activity and the number of teachers available.

The said saw was introduced to the said school in December 1996. It was primarily used as a back-up to the circular saw in the machine bay. It was positioned in the Major Projects Room which was connected to the two Industrial Arts Class Rooms.

Investigation after the accident by the defendant revealed that even with the said saw's guard fitted and properly adjusted, as per manufacturers design, the guard could not be lowered to the saw's table.

Since the accident, the defendant: (a) Decommissioned the said saw until a new guard had been fabricated. New blade guards were designed and fitted to both the circular saws owned by the said school.

(b) Initiated a Rehabilitation Program for Carpenter which included completing accident and misadventure applications with the Board of Studies for Carpenter's Higher School Certificate.

(c) Complied with Improvement Notices No. 154777, 154778, 154780, 154783.

(d) Issued a directive that no person, student or teacher, use the said saw until formal, specific training has been provided.

(e) Prohibited student use of the said saw unless direct teacher supervision is provided.

(f) Updated the Industrial Arts Department's Safety Policy.

(g) Visual inspection of all machinery by Head Teacher Industrial Arts at the commencement of each day.

The Verdict 7 The defendant entered a plea of guilty at the commencement of the hearing. Having regard to the summons in this matter, the particulars of the offence and the statement of agreed facts, I accept the plea of guilty of the defendant and enter a verdict accordingly.

The Evidence 8 A variety of documentary evidence was tendered in these proceedings and oral evidence was heard from a number of witnesses. An agreed bundle of documents was tendered and admitted without objection. The bundle of documents included a factual inspection report completed by Inspector Robert Young of the WorkCover Authority of NSW, a series of photographs of the site, a code of practice for the saw milling industry and a series of statements taken by Inspector Young from various persons as to the accident.

9 The prosecutor called Inspector Steven McMartin of the WorkCover Authority of NSW to give evidence and tendered a report completed by the Inspector in relation to the guarding and safe use requirements of the type of circular saw that was involved in the accident. The prosecutor also called Mr Carpenter, as well as two other former students at Kingscliff High School, who were, at the time of the accident, in the same class as Mr Carpenter, namely, Mr Beau Justin Gilfillan and Mr Jeffrey David Pritchard.

10 The defendant called a number of persons employed at the school to give evidence and affidavits were tendered and admitted from each witness. The witnesses included the principal of the school, Mr Milton Davie Simmons, the teacher who was teaching Mr Carpenter's class at the time of the accident, Mr Gregory Porter, and the head teacher of Industrial Arts at the school, Mr Paul Warrick Mattress. The defendant also called a general assistant employed at the school, Mr Phillip James Barrett, and the defendant's Staff Welfare Officer for the Tweed Heads/Ballina District, Mr Robert Neal Gambrill.

11 A number of issues relevant to sentence arose from the evidence. The first issue addressed by the parties concerned the absence of the guard hood from the saw on the day of the accident. The defendant conceded that the hood was not in place on the day of the accident. This was evident from the evidence of Mr Carpenter and was corroborated by the evidence of the other students and the teacher, Mr Porter. One of the students, Mr Gilfillan, gave evidence that when he observed the saw following the accident, the guard was on the floor beside the machine. Without being critical of the witness, I note that this account was not supported by any other evidence. It is sufficient at this point to observe that it was accepted by the defendant that the guard was not on the machine and that this concession was supported by ample evidence.

12 Divergence in the evidence emerged as to whether the hood had not been in place for any substantial period preceding the accident. In this regard, Mr Carpenter gave evidence that he had never been aware of a guard being in place on the saw. During evidence-in-chief, Mr Carpenter stated: Q. When you were observing other students operating the circular saw bench prior to your accident, did you have an opportunity to see whether there was a guard, something like a guard you have identified in photograph number 5 on the circular saw bench? A. No, not being in use either.

Q. You did not see any guard on the saw bench when other students were operating it? A. Not on the bench.

Q. Did you see the guard anywhere in the vicinity of the circular saw bench? A. No, particularly not in the main room between the two rooms. It never had a guard anywhere near it.

13 Under cross-examination, Mr Carpenter gave evidence that the guard had not been in place even when Mr Porter had demonstrated the use of the saw. He stated: Q. I suggest to you that every occasion that Mr Porter did any cuts for you on those items on those bits of wood you had brought in, the guard was always on? A. You are saying the guard was always on when Mr Porter done a cut, no.

Q. Are you saying "No", or are you saying you cannot recall? A. No, it was not.

14 The evidence of Mr Carpenter that the guard had not been in place prior to the accident was supported, to some extent, by the two other students called to give evidence. Mr Gilfillan gave evidence that the guard had not been in place when Mr Porter demonstrated the operation of the saw to the students and that the students were not instructed as to the importance of having the guard in place. Mr Gilfillan was cross-examined about his evidence in this respect as follows: Q. Then you say that during the course of the year that you walked past that machine and every time you walked past it you say you did not see the guard on it? A. Exactly.

Q. Why would you remember a thing such as that? Did you say: "Oh, there is that circular saw without the guard on, I must take a note of it"? A. No, I just observed it.

Q. There were lots of machines in that room and the other room, weren't there? A. Yes.

Q. Was there anything you noticed about any of the other machines? A. No.

Q. It just so happens that, however it was, you would go in and you thought "Oh, the guard is still off". Is that what you thought?

Q. How many times would you have looked at that circular saw? A. In the whole time at school?

Q. That year? A. 30 to 40 times, a fair bit.

Q. Did you ask any of the teachers: why isn't the guard on the circular saw? A. No.

Q. You say it was always underneath it, how could you see it? A. Because the doorway was just back to the left and as you walked in, that was the first thing you would see, that and the sander.

15 Mr Pritchard gave a slightly differing account. He stated that the guard might have been on the machine at the start of the 1997 school year, but that it had not been in place very long. He stated: Q. Do you know what that item is? A. Yes, it is the guard off the saw.

Q. Do you know whether or not when you were operating the circular saw between the start of the school year and 1997, and Grant's accident, can you remember when that was? A. No, I cannot recall, I never saw it there. At the first it was there but it did not last very long and after that I don't know where it was.

Q. You say at the beginning? A. Yes, it was on the saw at the beginning.

Q. What happened? A. And then someone took it off.

Q. When? A. I think it was around April 1997. It was a couple of months after the year started.

16 In cross-examination, Mr Pritchard repeated that the guard had not been in place for some time prior to the accident and stated that even when it had been in place it had not been properly installed. He stated in cross-examination: Q. You say the guard on the machine on which Mr Carpenter had his accident was gone in April? A. We never used the guard any day.

Q. You said the guard was on till April? A. It was on but not set up properly. It was up high and no one used it.

Q. In terms of the operation, when you used it the guard was on up to April? A. About April.

Q. Could it be late April? A. I mean, could have been March - I'm not sure.

Q. Could have been early May? A. It didn't last long. It was a while before the accident, I'm not sure.

17 The evidence of the teachers, Mr Porter and Mr Mattress, was that the guard had always been in place whenever they had used the saw. Mr Porter stated in his affidavit that he always used the saw with the guard in place, except on rare occasions when it was necessary to remove the guard in order to cut large items which could not be cut with the guard in place. He stated that at no time before the accident had he noticed the guard had been removed. Under cross-examination, Mr Porter agreed that the guard had been removed at some point, but he was unable to be certain when that occurred. Later, he stated: Q. You in answer to a question I asked you a little while ago, agreed you did not check on 23 May 1997 whether the guard was on, secured to the TS222 circular saw, didn't you? A. Yes.

Q. So, if you did not check on 23 May 1997, it follows that, perhaps, you did not check on other days prior to that day as well, does it not? A. I suppose you could say that, but I used that circular saw on the day prior to the accident, or in using it I would have checked it and realised the guard was off.

Q. The guard was not on the circular saw the day before the accident, was it? A. The day before?

Q. The day before, 22 May? A. The guard was on there.

Q. I am putting to you it was not? A. I am putting to you it was, if I used the saw the day before, the guard was on.

18 Mr Mattress also gave evidence that he never used the saw without the guard being in place and he had never witnessed the guard having been removed. Mr Barrett, the general assistant employed by the school, stated that in his experience the guard had never been removed from the saw, although he conceded that he had not observed the machine immediately prior to the accident.

19 The resolution of this question presents some difficulties in light of the evidence. Counsel for the defendant suggested that Mr Carpenter may have been biased in this evidence as a result of his interest in personal injury proceedings relating to the accident. It was also implied that the three students had discussed the cause of the accident prior to giving evidence in the proceedings. Having observed Mr Carpenter giving evidence, I find no basis upon which to draw adverse conclusions concerning the veracity of his evidence. In my view, he gave evidence in a forthright and direct manner. Even though Mr Gilfillan and Mr Pritchard admitted that they had discussed the accident with Mr Carpenter, I also find no reason to conclude, on the evidence, that their evidence was unreliable on the basis of collusion.

20 However, having reviewed the evidence, I do not consider that it has been established that the guard was not on the saw for any considerable period preceding the accident. In this regard, I note that the prosecutor bears the onus of proving beyond reasonable doubt the facts which are to be taken into account adverse to the defendant in relation to sentencing: see R v Olbrich (1999) 199 CLR 270 at [27] and Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [60]. The evidence of the students was not entirely consistent. Whilst Mr Carpenter and Mr Gilfillan stated that the guard had never been in place on the machine, Mr Pritchard indicated that the guard was in place at the start of the year and had been removed some time before the accident. Although the three students did use the classroom on a number of occasions each week, they were required to use that particular saw only irregularly. I do not consider that their evidence is sufficient to establish that the guard was never in place or had been removed a considerable period prior to the accident. The two teachers, particularly Mr Porter, had the opportunity to observe the equipment with much greater regularity than the students. I accept his evidence that the guard was in place when he used the saw prior to the accident, although it had been removed some time shortly before the accident without observation or correction.

21 A second issue which arose from the evidence concerned the level of instruction received by the students in relation to the operation of the saw and, in particular, the safety risks occasioned by the operation of the saw. It is clear that the students received some instruction as to the use of the circular saw, such as how to turn the machine on, how to raise and lower the blade and how to adjust the fence. However, the three students generally gave evidence that they were not told about the function of the guard or the importance of the guard being in place. For example, during cross-examination, Mr Carpenter denied that the students had been told of the importance of the guard as a safety device and stated that he was not even aware of the guard's purpose. He stated: Q. You were told in the class the purpose of the guard which goes over the blade? A. I cannot remember that.

Q. You cannot remember that? A. No, not in that class.

Q. In that Year 11 class, the teacher told you in that class, on a number of occasions, the importance of using the hood on the saw in place when it was in operation? A. No, it was never stressed to us about the guard being on the saw.

Q. I will ask you a different question. The teacher told you in Year 11 that the guard had to be in place over the blade when the circular saw was in use? A. No.

Q. You say no because that did not happen or you cannot remember? A. No, because it did not happen.

22 The three students were all cross-examined in relation to a textbook that had been used in the Design and Technology course at the school. A particular page of the textbook contained a diagram of a circular saw similar to the one involved in the accident. The textbook required the students to name particular parts of the machine, including the "blade guard". The procedures set out in the textbook required the guard be adjusted to within 12mm of the timber surface. Mr Carpenter acknowledged that the textbook was used in the class, but could not recall whether he had read or completed that particular section of the book. Mr Gilfillan and Mr Pritchard also conceded that they had been taught from the book and both stated that they would probably have been told the purpose of each component of the saw. However, both students were unable to recall that particular lesson.

23 Mr Porter stated that at the commencement of each school year he would conduct an introductory lesson concerning general workshop safety practices and machines. He stated he would have given specific instructions concerning the operation of the circular saw and that the use of the guard was a primary and fundamental topic of instruction. He further stated that he was certain he had instructed Mr Carpenter regarding the need to use the guard on the circular saw at all times whilst it was in use. Mr Porter repeated this evidence during cross-examination. Mr Mattress also indicated that the usual practice of the Industrial Arts department was to conduct introductory classes concerning safety practices, including the operation of the circular saw. Mr Mattress stated that the operation of the guard would have been included in this instruction.

24 On the basis of this evidence, I am satisfied that there was some introductory direction concerning general safety practices to be adopted in the workshops at the commencement of each school year. The children were taught from a textbook that included lessons concerning the operation of the circular saws and the function of the safety guard. Whilst the evidence of the students was that they probably were taken through the textbook, they could not remember that particular lesson. The evidence of Mr Porter was also that he demonstrated the safe use of the machines when instructing individual students. I accept his evidence in this regard. However, it is appropriate to observe that this instruction could have constituted no more than ad hoc assistance when Mr Porter happened to be assisting a student.

25 The final issue arising from the evidence concerned the operation of the guard which had been provided for use on the circular saw involved in the accident. A report completed by Inspector McMartin was admitted concerning the operation of the type of circular saw involved in the accident. For the purpose of completing the report, the Inspector conducted an inspection of an identical circular saw and took a number of photographs demonstrating aspects of its operation. Inspector McMartin's report explained the appropriate use of the guard when operating the saw. The report stated as follows: GUARDING OF THE SAW BLADE 1. It is important for the operator to understand the rotation and action of the saw blade and the interaction of the timber being cut to appreciate the correct position of the hood guard and the riving knife. The saw blade rotates clockwise when looking at the blade from the left-hand side of the table therefore it tends to lift the timber being cut at the rear and push it down at the front. If the timber is not held down onto the table it will be lifted by the back of the blade to the top of the blade and propelled towards the front of the bench saw at the surface speed of the rotating saw blade. This often results in the operator or others being impaled. It is for this reason that the operator or others should never stand in line with the rotating saw blade. It is also the reason, in the case of the "Woodman TS-222" bench saw, that the Perspex is positioned on the left side of the hood guard so the operator views the blade from the left and out of line of the rotating saw blade. The emergency stop button should also be positioned on the left side of the machine, as is the case with the "Woodman TS-222" bench saw. 2. The hood guard should be lowered as close as possible to the timber being cut. The hood guard prevents the timber rising from the table to the top of the saw blade. The saw blade should also be adjusted to a height to allow the hood guard to cover the top of the saw blade, which will also prevent the timber rising to the top of the saw blade.

26 During evidence-in-chief, Inspector McMartin indicated that the guard could be adjusted vertically or horizontally. Relevantly, the guard could be lowered and raised using two hand screws on the top of the hood. Inspector McMartin stated that when the two hand screws were used the guard could only be lowered to a height of 65mm from the top of the bench. If a thin piece of timber were being cut, such as that being used by Mr Carpenter on the day of the accident, a significant gap would remain between the timber and the bottom of the guard. However, Inspector McMartin explained that if only one screw was used the guard could be lowered until it was flush with the bench.

27 During cross-examination, Mr McMartin emphasised that the guard was integral to the operation of the machine. He stated: Q. As far as the head guard on such a circular saw is concerned, it is a very important piece of equipment? A. It is.

Q. Because the circular saw, as you have identified, can be even when used properly with the guard in place, very dangerous? A. Lethal.

Q. Lethal in terms of a piece of wood flying out? A. That is right.

Q. But in terms of cutting someone's hands, very dangerous but not necessarily lethal? A. No.

Q. The hood guard serves two purposes, it stops hands particularly coming in contact with the blade? A. Yes.

Q. And it also stops a piece of wood unexpectedly flying out the other end? A. Yes.

Q. Because a hood guard pushes down - so with the hood guard raised it is a barrier? A. It is, it is an integral part of the machine. It is not just there to prevent access to the blade. It is there to hold the timber down in the appropriate position for the cutting or contact with that blade.

28 It was clear that neither Mr Porter nor Mr Mattress fully understood the operation of the saw, particularly in relation to the capacity of the guard to be lowered flush to the table. During cross-examination, Mr Porter stated: Q. When I was asking you questions about 10 to 15 minutes ago, about the guard and the vertical and horizontal adjustment of the guard, you said to me "I adjusted the guard as far as it would go", do you remember saying that? A. Yes.

Q. How far down did it go? A. That far.

Q. About 65 millimetres? A. Yes.

Q. That means at all times the guard was fastened to the arm by the two screws in the vertical adjustment, was it not? A. Yes.

Q. So you did not know, prior to 23 May 1997, that if you took one of those screws out you could adjust the guard even further to make it flush with the circular saw bench, did you? A. No.

Q. If you had that much space, 65 millimetres, that is about the size of a fist, isn't it? A. I guess so.

Q. That amount of distance between the top of the guard and the bench would make it highly likely, if a piece of off-cut got caught with the saw and someone's hands went with it, that that hand could be very badly damaged? A. I suppose so.

29 Mr Porter also indicated that he was not aware that an operator was supposed to stand outside the railing attached to the saw so as to ensure he or she was not in line with the rotating saw blade.

30 Mr Mattress conceded in cross-examination that, when interviewed by an Inspector of the WorkCover Authority, he stated that the guard could not be adjusted right down to the surface of the saw bench. His evidence continued: Q. That was in fact your understanding of the situation in relation to the adjustability or otherwise of the hood guard? A. Yes. The way the guard was set up, it wasn't lowered to within about - I said 100 millimetres but it's probably more than that, 100, 150 millimetres above the table. It wouldn't go any lower.

Q. You have done something with your hands indicated some distance. Are you more comfortable with millimetres or inches? A. Millimetres. 100 to 150 millimetres so probably - I've never actually measured it so I'm only going on a visual sighting of it.

Q. Do you now any different now? Do you know whether in fact it could have been adjusted since the accident? A. It possibly could have been. We modified the actual guard after the accident. I rang the supplier of the saw. This is a saw that was supplied to us by the department. It came from overseas and the supplier told me how to adjust the blade - the guard down.

31 It should be noted that the manner in which the guard was set up on the saw did not contribute to the accident and injuries sustained by Mr Carpenter. As has been discussed, the guard had been removed entirely at some point prior to 23 May 1997. However, the evidence of Mr Porter and Mr Mattress indicated that, even when the guard was in place, a significant risk to safety existed. The existence of a gap between the bench and the bottom of the guard (when fitted in the manner described above) meant that a person's hand could enter the area containing the saw blade and that the piece of timber being cut would not have been securely held down.

32 Ms A F Backman of counsel, who appeared for the prosecutor, submitted that the primary factor to consider in relation to penalty was the objective seriousness of the offence. Ms Backman noted that the maximum penalty for the offence was $750,000 as a result of the fact that the defendant has prior convictions: see s51A of the Act. Counsel submitted that there was an obvious and foreseeable risk to the safety of persons operating the saw and that there was actual foresight of that risk. Ms Backman submitted that Mr Porter was aware that the guard had been removed prior to the time of the accident and the students were able to use the saw without permission from the teacher. In addition, it was submitted that, even if the guard had been in place, a risk to safety remained as a result of the existence of a gap between the bench and the bottom of the guard. This risk was also, it was contended, actually foreseen by the teachers.

33 The prosecutor submitted that the defendant failed to inform itself of or adopt a safe system of work. In particular, it was contended that there was no adequate supervision of the students whilst they were working in the classroom and no inspection was undertaken of the machinery in use at the school. It was submitted that the injuries sustained by Mr Carpenter manifested the degree of seriousness of the risk to safety occasioned by the unguarded circular saw. It was also contended that there were simple and straightforward remedial steps that could have been adopted, including those measures introduced by the defendant following the accident. In summary, Ms Backman submitted that the risk of injury to students combined with the actual foresight of the risk raised the offence to the level of the utmost seriousness.

34 Mr J P Phillips of counsel, who appeared for the defendant, submitted that this was not a case in which a risk to safety had actually been foreseen and disregarded. It was submitted that the evidence supported the conclusion that Mr Porter and Mr Mattress were not aware that the guard had been removed from the saw until after the accident. Mr Phillips contended that the guard must have been removed some time either the day before or on the day of the accident. It was conceded that this was the result of a failure to inspect or supervise the machine, but it was submitted that the offence should be considered on a different level from a case in which a known risk to safety had been allowed to continue.

35 It was submitted that the teachers working in the Industrial Arts faculty at the school were extremely experienced teachers with extensive experience and training in the operation of equipment, including circular saws. It was contended that the evidence supported the conclusion that both Mr Porter and Mr Mattress were careful, intelligent and responsible teachers who would have addressed any risk to safety had they become aware of it. The accident occurred, in this case, as a result of a risk to safety arising outside the knowledge of the teachers.

36 In relation to the gap between the bench and the bottom of the guard, Mr Phillips submitted that this aspect of the installation of the guard played no role in the accident, the subject of these proceedings. It was contended that the accident occurred because the guard had been removed and there was no aggravation as a result of the fact that the guard could not be adjusted down to the level of the table. It was submitted that the defendant had not pleaded guilty to an offence of failing to ensure that the guard could be properly adjusted, but to the offence of failing to ensure that the guard was in place at all.

37 Mr Phillips also pointed to a number of subjective factors to be taken into account in the assessment of penalty. It was submitted that the defendant had entered an early plea of guilty and that the defendant had expressed its contrition and remorse in relation to the accident. It was submitted that the defendant co-operated with the WorkCover Authority in the investigation of the accident and appropriate remedial measures were adopted following the accident. In relation to prior convictions of the defendant, Mr Phillips submitted that it was unrealistic and served no good purpose to consider the convictions of the entire operations of the State of New South Wales.

Consideration 38 The Court has recently stated the principles to be applied in relation to the sentencing of an offender under the Act in a number of cases, including WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 427 - 433 and Capral at [61] - [95]. I adopt those statements of principle for the purpose of this judgment.

39 In accordance with the established principles governing sentencing for offences under the Act, it is necessary to first consider the objective seriousness of the offence: see, for example, Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 464 at 472 - 476 and Fletcher Constructions Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 at 77 - 81.

40 In this regard, I note that it was submitted by the prosecution that the maximum penalty in this case was $750,000. The defendant accepted that this was the case.

41 For a number of reasons, I consider the evidence established that the offence in this case was an extremely serious one. The offence resulted from the existence of an unguarded circular saw in a classroom used by students of secondary school age. It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at [53].

42 The dangers presented by an unguarded saw are well known and management at all levels should be vigilant to ensure that unguarded machinery is not used. The seriousness of the detriment to safety in this case was amply demonstrated by the serious injuries sustained by Mr Carpenter. It is well established that, although the gravity of an offence under the Act is not necessarily reflected in its actual consequences, the occurrence of death or serious injury manifests the seriousness of the relevant detriment to safety: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5 and Lawrenson Diecasting at 476. In the present case, the evidence indicated that there was a risk of injury, not only of a person sustaining injuries as a result of their hand coming into contact with the blade, but due to wood flying up out of the machine. The evidence of Inspector McMartin was that, without the guard in place, there was a real danger of a piece of wood being propelled out of the machine and seriously injuring the operator.

43 The defendant submitted that this was not a case in which a known or obvious risk to safety was permitted to remain unchecked. It was contended that Mr Porter and Mr Mattress were not aware that the guard had been removed from the saw at any time prior to the accident. As has been discussed, I do not consider that, on the evidence, the guard had been removed for a substantial period prior to the day of the accident. I accept the evidence of Mr Porter and Mr Mattress that they did not, prior to the accident, observe that the guard was missing. As a result, it is necessary to take into account the fact that the risk occasioned by the removal of the guard was not actually foreseen by the teachers and that the guard was removed only shortly before the accident. I have also taken into account that the defendant had in place a limited system providing for the instruction and supervision of students using the machines.

44 However, these factors do not remove the fact that there were patently inadequate levels of supervision of the students and of the equipment in the classroom. It was conceded in the agreed statement of facts that the teachers conducted no regular inspections of the machinery to ensure that safety equipment was in place and working effectively. The students were permitted to use the machines in circumstances where there was no supervision of individual students. In these circumstances, I have no doubt that the risk of unsafe machinery being used was readily foreseeable. The foreseeability of a risk to the health and safety of persons in the workplace is a significant factor in relation to the culpability of a defendant: see Capral at [81]. The failures in supervision and inspection are also evidence of a demonstrably inadequate system of work.

45 Furthermore, as it was operated at the school, the guard did not ensure that the machine was safe even if it had been installed on the day of the accident. As a result of the manner in which the guard was operated, a gap of at least 65mm would have existed between the bench and the bottom of the guard. It is evident that Mr Porter and Mr Mattress were not aware that it was possible for the guard to be lowered flush with the bench. As a consequence, the guard provided inadequate protection because it was still possible for a person's hand to come into contact with the rotating blade and the timber to be cut was not properly secured. I consider that this matter is clearly within the scope of the particulars to the charge. Particular 1 refers to the failure of the defendant to securely fence the blade of the circular saw. The inadequacies evident in the guard which had been provided for the circular saw were within the contemplation of the charge to which the defendant pleaded.

46 It was further submitted by the defendant that the inadequacy of the guard was not relevant to sentence because the accident occurred when the guard had been removed entirely. As a result, it was contended there could be no aggravation as a result of the deficiencies in the guard. I do not accept this submission. As has been frequently stated in decisions of this Court and its predecessors, the offences under the Act are directed at obviating risks to health and safety rather than punishing a failure to address the precise circumstances of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 156 - 157 and Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 at 452 - 453. The evidence that the guard was deficient in protecting persons using the saw is a factor revealing the seriousness of the risk to the safety of the students. It should be noted that the defendant sought to argue that its culpability was reduced because the guard had been removed without the knowledge of the teachers in the classroom. The fact of the matter was that the guard would not have properly protected the students, including Mr Carpenter, even if it had been in place.

47 The deficiencies in the guard also demonstrated that the teachers who supervised the classroom were themselves not fully cognisant of the procedures that were necessary to ensure the safe operation of the saw. Neither Mr Porter nor Mr Mattress were aware of the necessity for the guard to be lowered as close as possible to the timber being cut. The evidence of Inspector McMartin clearly explained that the guard must be lowered as close as possible to the timber to prevent the risk of hand injuries and the risk of pieces of wood being propelled out of the saw. The evidence of Mr Porter and Mr Mattress also showed that they were not aware of the necessity that an operator never stand in line with the rotating blade of the saw so as to ensure that the operator is not struck by a piece of wood which may be propelled towards the front of the bench. The lack of appropriate knowledge by the teachers is clearly evidence of the inadequacy of the supervision and instruction that was provided to the students.

48 I consider that the training and instruction provided to the students at the school was manifestly deficient in failing to bring the students' attention to possible dangers that might arise during the operation of machinery in the classroom, including the circular saw. I accept the evidence of Mr Porter and Mr Mattress that introductory lessons were conducted at the commencement of each school year concerning general safety practices and that the students were taken through a textbook requiring them to identify various parts of machinery in use, including the guard on the circular saw. Mr Porter also gave evidence that he demonstrated the use of the saw directly to particular students, including Mr Carpenter. I accept Mr Porter's evidence in this regard. However, his evidence did no more than demonstrate that he might assist students on an ad hoc basis, if necessary. Instruction from a textbook combined with ad hoc demonstration of equipment, as necessary, was, in my view, inadequate to ensure that the students were appropriately appraised of the procedures required for the safe operation of the circular saw. The evidence of the three students that they were, in fact, unaware of the proper use of the guard demonstrated that the teaching methods were not effective.

49 I also consider that there were relatively simple and straightforward remedial steps available to the defendant that, if undertaken, would have prevented the risk of injury evident in this case. Primarily, the defendant should have ensured that the guard was properly fitted. The defendant could, and should, have ensured that all students received formal and specific training in relation to the use of the saw. The teachers should have undertaken some form of regular inspections to check that machines were safe and in proper working condition and properly supervised work performed on such machines. It has long been said that the availability of obvious remedial measures is a matter which may demonstrate the seriousness of an offence: see Lawrenson Diecasting at 476; Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27 and McDonalds at 450.

50 Further, whilst the steps taken by the defendant after the accident should receive credit, these actions were such, in my view, as to reveal in clear terms the decisive steps which may have been taken by the defendant to actually prevent the accident (and thereby demonstrate a flaw which existed in the safety systems provided by the defendant). In this matter, the defendant introduced, after the accident, a system prohibiting students from using circular saws without direct teacher supervision and requiring that all electrically powered machines be checked before classes were held utilising such machines. 51 The seriousness of the offence is, in my view, greatly increased by the fact that inherently dangerous machinery was used by secondary school students in the classroom. Where machinery is to be used by young people, it is essential that the safety procedures employed take into account the fact that children of secondary school age are generally inexperienced in the operation of machinery, may have limited knowledge of risks which may arise in the use of machinery and, as a result of their lack of experience, may take longer to acquire the knowledge necessary to be fully aware of potential risks. The students may also lack maturity and general experience of a working environment. The approach of the defendant in this case appeared to be that the irresponsibility or inexperience of the students reduced the culpability of the defendant because it was difficult to ensure safety equipment was properly used. The following exchange occurred during cross-examination of Inspector McMartin by counsel for the defendant: Q. Here we have school children in teenage years and one does not need to be Einstein to recognise children in that age group can be disobedient? A. Yes.

Q. They think they know everything? A. So can adults.

Q. I am talking about children who at this age can be disobedient? A. Yes.

Q. They think they know everything? A. Yes.

Q. They can be incompetent? A. Yes.

Q. Because they are learning they need to be shown how to do things properly? A. Yes.

Q. They also can be negligent? A. Yes.

Q. Or clumsy and forgetful? A. Yes.

52 Rather than reducing the culpability of the defendant, in my view, these considerations as to the vulnerability of students amply demonstrate the increased vigilance and awareness of risks to safety that is demanded of an employer where young people are to be present in a workplace. Young people require a higher level of protection. Those with responsibilities to supervise secondary school students have an essential duty to ensure that risks to safety are eliminated, particularly where highly dangerous machinery is in use. In McDonald's, for example, the Court stated that (at 452): The defendants conduct a very large enterprise operating throughout New South Wales and a variety of potentially dangerous equipment is used in their restaurants. The defendants identified that their enterprise involved the employment of a large number of young persons, such as the deceased, with little or no previous work experience. In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations.

53 It follows from what I have said that the elements of both general and specific deterrence must play a role in the determination of sentence in this case. The defendant has responsibilities towards thousands of young students in schools throughout the State. It is necessary for the penalty imposed to compel the attention of the defendant to the level of vigilance required to ensure that its students, and employees, are not exposed to dangers as a result of its operations, particularly as a result of the presence of unguarded or otherwise unsafe machinery. The public interest requires no less. Furthermore, the penalty to be imposed must reflect the need for general deterrence: see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 and Capral Aluminium at [75]. It is, in my view, important to indicate to the community the need to ensure that adequate safety precautions are adopted in relation to inherently dangerous machinery in the workplace, particular where the machinery is intended to be operated by young people.

54 It is appropriate to have regard to various subjective factors in the assessment of penalty. I note that the defendant entered an early plea of guilty. The defendant also expressed its contrition in relation to the accident. The teachers at the school, including Mr Porter, expressed shock and remorse in relation to the accident and the injuries sustained by Mr Carpenter. I do observe that Mr Porter, when cross-examined, was reluctant to accept any responsibility in relation to the accident. I find this a matter of concern, but nonetheless accept his stated remorse in relation to the accident.

55 The sentencing guidelines laid down by the Court of Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 in relation to pleas of guilty have now been applied on numerous occasions by this Court: see, particularly, WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority (NSW) NSWIRComm 179 at [37] - [40], State Rail Authority (NSW) v WorkCover Authority of NSW (Inspector Dubois) (2000) 102 IR 218 at 236 - 237 and Department of Mineral Resources (Chief Inspector McKenzie) v Berrima Coal Pty Ltd (2001) 105 IR 38 at [159] - [160]. In accordance with the guidelines laid down, I propose to allow an overall discount on the penalty of 25 per cent in consideration of the early plea of guilty, contrition and co-operation in the investigation.

56 I also take into account the fact that the defendant adopted various remedial measures following the accident. The measures adopted included prohibiting student use of the circular saw without direct teacher supervision and ensuring that all electrically powered machines were inspected every day before any lessons were held in the classrooms. There was also evidence that the defendant has adopted more comprehensive training for Industrial Arts teachers in relation to occupational health and safety issues.

57 A particular issue was raised in submissions concerning the approach to be taken to the prior convictions of the defendant. The evidence tendered suggested that there had been three prior convictions under the Act referrable to the Department of Education and Training, but that a number of other convictions had been recorded against other emanations of the State, including the Department of Community Services, the Department of Conservation and Land Management, the Department of Corrective Services and the Department of Agriculture. The prosecutor submitted that it was relevant, when assessing penalty in relation to this matter, to take into account the prior convictions incurred in respect of other departments of the defendant. The defendant submitted that it was unrealistic and served no good purpose to consider the convictions of the entire operations of the State of New South Wales. Mr Phillips conceded that the Department of Education and Training was an emanation of the Crown. However, it was submitted that, in the exercise of the Court's discretion, it was appropriate to only have regard to the record of the Department. Mr Phillips pointed out that the Department of Education and Training does not share funds with other departments, has separate occupational health and safety policies and procedures and funds, from its own resources, the purchase of equipment.

58 The Court was referred to two authorities which have considered the question of whether the prior convictions of other departments should be considered in relation to offences committed by a different emanation of the State of New South Wales. In WorkCover Authority of NSW (Inspector Tuckley) v Crown in Right of New South Wales (Department of Community Services) (1999) 96 IR 1, a submission was made by the defendant that in the sentencing process consideration of prior conviction should be limited to convictions in the area of the responsibility of the Department of Community Services. Hungerford J observed that the Crown was the proper employer of the injured worker rather than the particular department or statutory authority involved. His Honour continued (at 22 - 23): Having in mind the role played by prior convictions for the purposes of determining an appropriate penalty, I think it may be accepted that a most relevant consideration would be if no prior convictions existed in relation to the department concerned; but, in my view, that is not to say that prior convictions of the Crown generally are not relevant as well. I think they are. After all, the Crown is the employer and the fact it may organise the performance of its functions in a particular way, but still to retain responsibility as the employer rather than to establish a separate statutory corporation as the employer, cannot remove the Crown's overall responsibility and liability as such for the acts or omissions of those through whom it performs its functions. In the same way, and by direct analogy, an employer in private industry incorporated as a particular legal person may administratively so organise the performance of its functions so as to be done through departments or divisions of the corporate entity; but it is the corporate entity itself which is the employer and hence the legal person responsible for the conduct of the whole of its operations. For instance, I do not think it could be said that where a private corporation is, say, engaged in manufacturing at five plants throughout the State that if it had prior convictions as to two of those plants that that would not be relevant where it was convicted of an offence for the first time at another of its plants. And so, it seems to me, it must be for the Crown as an employer even though performing its very many functions of government through a departmental structure.

Accordingly, I conclude that prior convictions of the Crown generally are relevant for the sentencing process, and not just those convictions incurred in respect of the department concerned, so that it is proper for the Court to be advised in any particular case arising under the Occupational Health and Safety Act of such prior convictions where the Crown is the defendant.

59 This decision was followed by Schmidt J in WorkCover Authority of NSW (Inspector Keenan) v Crown in Right of New South Wales (Department of Education and Training) (unreported, Schmidt J, Matter No IRC 598 and 601 of 1998, 6 December 1999). Her Honour concluded that the prior convictions of the Crown generally were relevant for the sentencing process. Her Honour stated: I also reject the notions inherent in the submission that in assessing penalty it would not be appropriate to 'visit' the officers of the Department of Education with the 'sins' of officers of another Department, in relation to earlier prosecutions of the Crown. Here the Court is concerned with two offences to which the Crown has entered a plea, thereby accepting that its obligations under the Act were breached. Like other defendants to prosecutions such as these, such acceptance has no doubt resulted from its assessment of the consequences of the conduct of its employees on its behalf.

While I accept, as I have already noted, that it is relevant in assessing penalty here that account be taken of the fact that these are the first two prosecutions of the Crown involving the Department of Education, it is in my view wrong to approach the task which lies before the Court on the basis that officers of the Department of Education are being visited with the consequences of the actions of other officers of the Crown. As far as I am aware, such other officers have not been charged with offences under the Act and if they were, any penalties imposed upon them would have little or indeed, no, relevance to the penalties imposed upon the Crown in later prosecutions under the Act. It is the responsibility of the Crown for the actions of those through whom it performs its functions, as Hungerford J observed, with which I must be concerned in assessing penalty for these offences. That there might be other ramifications for officers of the Department of Education flowing from the penalties here assessed, is not a matter relevant to what those penalties should be.

60 The sentence imposed by her Honour in that case was altered by the Full Bench on appeal: see Crown in Right of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181. However, in that case the appellant accepted that her Honour was correct in taking into account prior convictions of other arms of the State. The Full Bench was, as a result, not required to determine the question now raised.

61 I consider that the Court is required to consider prior convictions of the Crown generally when assessing the appropriate penalty to be imposed for an offence under the Act. As was pointed out by Hungerford J in Tuckley, the Crown retains overall responsibility as an employer, notwithstanding the fact that it may structure its operations by dividing different areas of responsibility between departments or similar entities. Of course, the consideration of the prior record of a defendant is not a mechanical process which merely requires the Court to aggregate the number of convictions which have been recorded. The defendant correctly pointed out that, when considering the defendant's record, it is appropriate for the Court to take into account the size, nature and diversity of its operations. In Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455, for example, the Full Bench stated (at 456 - 457): We think that, having regard to the specific nature of the legislation, the past record upon which both the prosecution and defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a smaller company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential enquiry must remain the circumstances of the breach in question.

62 A similar approach was adopted in McDonalds at 454.

63 The task before the Court is to consider whether, in light of all the circumstances of the defendant's operations, the offence in question constitutes an uncharacteristic aberration or manifests a continuing attitude of disobedience of the law: see Veen v The Queen (No 2) (1987) 164 CLR 465 at 477 - 478. I would add that prior convictions against the same department or statutory authority may generally be of greater relevance when assessing penalty. In this regard, I note that there have been three convictions recorded against the Department in the last two years. I note that two matters resulted in fines of $210,000 for two offences and $80,000 in relation to one offence. Nonetheless, the overall record of the Crown must be considered.

64 The provisions of s121(3) of the Occupational Health and Safety Act 2000 ("the 2000 OH&S Act") do not alter that conclusion. The 2000 OH&S Act commenced after judgment was reserved in this matter (although I note that the terms of s121(3) were referred to by Mr Phillips in his written submissions by reference to the then proposed form of s121). However, the provisions of s121(3) of the 2000 OH&S Act apply in this matter by virtue of cl13 of Sch3, Savings, Transitional and Other Provisions of that Act.

65 Section 121 of the 2000 OH&S Act is in the following terms : (1) In this section, "penalty" means: (a) the monetary penalty for an offence against this Act or the regulations, or (b) the amount payable under a penalty notice served in connection with such an offence, or (c) the amount payable under an order made under Division 2. (2) The penalty in respect of proceedings against the Crown is the penalty applicable in respect of offences committed by a corporation. (3) If that penalty differs for previous offenders, the Crown is a previous offender in relation to particular proceedings against the Crown only if the Crown is a previous offender in respect of the acts or omissions of the same responsible agency of the Crown (or any predecessor of that agency). (4) Enforcement proceedings under the Fines Act 1996 cannot be taken in connection with penalties imposed in respect of proceedings against the Crown.

66 The provisions of s121(3) of the 2000 OH&S Act are not applicable, in my view, to the Court's consideration of prior convictions of the Crown for the purpose of determining the appropriate sentence in relation to a charge as distinct from the determination of the maximum penalty for that offence.

67 Section 121 defines the word 'penalty' to mean (for the purposes of that section) the monetary penalty for an offence against this Act or the regulations, the amount payable under a penalty notice served in connection with such an offence or the amount payable under an order made pursuant to Div2 of Pt7 of the 2000 OH&S Act. The legislature has thereby confined the meaning of 'penalty' for the purpose of the section to the statutory maximum fixed in relation to various penalties under the 2000 OH&S Act. In the result, the opening words of s121(3), when read with the definition in s121(1), has the effect of confining the operation of that sub-section to the assessment of the maximum penalty in relation to prosecutions brought against the Crown (where the penalties may differ depending upon the existence of prior offences).

68 This conclusion is buttressed by the use of the expression "previous offenders" in the opening words of s121(3). The expression "previous offender" is defined in s4 of the 2000 OH&S Act to mean: previous offender, in relation to the maximum penalty for an offence, means a person who has, at any time before being sentenced for that offence, been convicted of any other offence of any kind against this Act or the Occupational Health and Safety Act 1983.

69 Section 12 of the Occupational Health & Safety Act 2000 specifically distinguishes, for the purposes of fixing the penalty for offences under that Act, between 'corporations' or 'individuals' having regard to whether those corporations or individuals have prior offences.

70 It is clear from the statutory context in which the expression "previous offender" appears and the definition of that expression in s4 of the 2000 OH&S Act that the legislature has identified a particular class of offender with respect to which a higher maximum penalty will apply. This class is described in the 2000 OH&S Act as a "previous offender". In this light, the use of the expression "previous offender" in the opening words of s121(3) reinforces the conclusion that the legislature intended to restrict the operation of that sub-section relevantly to the determination of the maximum penalty for an offence.

71 Finally, I note the apprehension of the defendant that undue weight may be given to the prior record of other entities of the Crown rather than the particular entity committing the offence. I consider that the approach adopted by the Court to the assessment of the prior record of the defendant (see paragraph 63, consistent as it is with the decision in Tuckley) should obviate such concerns.

72 In the present case, having regard to the overall record and, in particular, to the operations of the Department, I consider the record of the Department of Education and Training and of the defendant generally to be reasonably good in light of the size and nature of its operations.

73 For the foregoing reasons, I consider an appropriate penalty with regard to the offence under s16 of the Act to be a fine of $105,000. I make it clear that the penalty imposed would have been greater but for the factors in mitigation raised by the defendant, including the pleas of guilty entered by the defendant, its co-operation in the investigation, the steps taken following the accident and the defendant's reasonable record. The prosecutor should have a moiety of the fine.

1. The defendant is fined an amount of $105,000 with a moiety thereof to the prosecutor. 2. The defendant shall pay the costs of the prosecutor as agreed or, failing agreement, as assessed.

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