[25] Delta failed to ensure that no-one was in the vicinity of the lifting area when they used the overhead gantry crane at the time the load was to be lifted by the gantry crane. Delta failed to designate a person as being responsible for ensuring all persons were clear from the load before it was lifted.
[26] Delta did not provide instruction or supervision for non employees in relation to the unloading of the pump from the low loader.
[27] After 23 March 2005 Delta changed its purchasing procedure to ensure that a contract administrator is clearly nominated on all purchase orders with a service component. Purchase orders with a service component require a site safety management plan signed off by a safety professional before awarding of the contract.
[28] After 23 March 2005 Delta introduced a distracting devices policy of all Delta worksites.
[29] After 23 March 2005 Delta tightened its policy and procedures to ensure that anyone coming on to site to perform work must be inducted.
[30] Delta has one prior conviction.
[31] Delta has co-operated with Work Cover during the course of the investigation.
8 In addition to the agreed statement of facts, the prosecutor also tendered a indexed bundle of documents including the following:
(i) A copy of an incident report compiled by Mr Barry Fitzgerald, Western Safety Manager for Delta;
(ii) Copies of sixteen colour photographs taken by Mr Fitzgerald; and
(iii) A copy of a WorkCover document, which discloses that the defendant has one prior conviction. The conviction was recorded under section 16(1) of the Occupational Health and Safety Act 1983.
9 On behalf of the defendant, the following affidavit material was tendered, without objection:
(i) Affidavit of Mr Stephen Gray Quilter. Mr Quilter is employed by the defendant in the position of Delta Maintenance Western Region Manager. He has only been in that position since 5 February this year. Mr Quilter is a qualified mechanical engineer and was previously employed by a Queensland state-owned corporation, CS Energy, for 12 years. Mr Quilter's affidavit described the operational structure of Delta, including details about its maintenance division, Delta Maintenance. Mr Quilter's affidavit also outlined the operations of Delta's power stations, including Wallerawang Power Station, details about the cooling water pump, what he understood had occurred on the day of the incident as well as actions taken by the defendant following the accident.
(ii) Affidavit of Mr Garry Johnson. Mr Johnson has been employed by Delta in the position of Legal and Compliance Manager since April 2006 and is currently also acting in the role of Corporate Secretary. Mr Johnson's affidavit deposed to the corporate history, functions and structure of Delta. As well, Mr Johnson detailed the defendant's safety policies and procedures as well as its on-going safety developments following the accident.
10 An exhibit note folder containing various occupational health and safety policies and work manuals were each annexed to Mr Quilter and Mr Johnson's affidavits. They were tendered without objection.
11 Mr Quilter was required for cross examination.
Relevant principles
12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.
13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:
.... it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'
14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 where the Court said:
In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' ...
15 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]:
In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ...
16 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.
17 On the issue of foreseeability, the Full Bench in Capral also stated:
The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:
... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.
18 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:
... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.
19 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:
... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).
20 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:
... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.
21 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)
22 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:
... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...