Consideration of penalty
30 I turn now to consider the appropriate penalty to be imposed. The maximum penalty for an offence, in a general way, indicates the seriousness with which Parliament has viewed the offence and represents an appropriate starting point for the assessment of penalty: see Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 380. In this case, the prosecutor submitted that the maximum penalty for the offence is $500,000, a submission which was supported by the defendant. As the defendant has no prior convictions under the Act, s 51A is not brought into play. As a result, I will approach this matter in the manner indicated as one in which the maximum penalty is $500,000.
31 As to the general principles applicable to sentencing I adopt my decision in relation to those principles in Workcover Authority of NSW (Inspector Peter Ankucic) v McDonalds Australia Ltd and Another (unreported, Matter No.'s IRC1104 and 1106 of 1998, 4 February 2000) at 87-98.
32 It is appropriate to commence the determination of penalty by considering the nature and seriousness of the offence. In this regard, I accept the submission advanced by the prosecutor that this is a case in which there was an obvious and serious risk to the safety of the defendant's employees which was left unchecked. The detriment to safety in this case consisted of the risk occasioned by allowing the employees to work in the mixer without ensuring that it was isolated. This detriment is exacerbated by the fact that it was possible to remove the valve at the bottom of the mixer so as to create a direct opening into the mixing chamber. The risk of part of an employee's body entering the chamber of the ribbon mixer and coming into contact with the blades was obvious. That threat, and its seriousness, were expressly acknowledged in the defendant's published process systems. The defendant's procedures acknowledged that the mixing action could cause "very serious injury". It is a threat against which the defendant had attempted to safeguard its employees by the installing proximity switches to the safety grill over the top of the mixing chamber to ensure that power was cut to the machine if the grill was raised.
33 The seriousness of the risk posed by the blades of the mixer is evidenced by the tragic injury sustained by Mr Burcher in this case. Whilst the true nature of a penalty for breach of s15 of the Act lies in the objective seriousness of the offence the occurrence of serious injury manifests the degree of seriousness of the detriment to safety occasioned. Further, the gravity of the potential risk flowing from a breach does constitute a measure of the gravity of the breach itself and a measure of culpability: Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Tyler v Sydney Electricity (1993) 47 IR 1 at 5. A case involving the failure of an employer to take appropriate steps to guard against a risk likely to result in serious injury must clearly be assessed on a different level from a failure to guard against a risk unlikely to have such a outcome. In this case, the failure in the defendant's safety system resulted in the amputation of part of Mr Burcher's right arm. Against this kind of threat, the Act requires an employer to take the most stringent of precautions.
34 On the other hand, the seriousness of the offence must be assessed in light of the policies and procedures which the defendant had in place. The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of an offence under the Act: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342; WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 at 429; Department of Mineral Resources (Insp. McKensey) v Kembla Coal at 25. I accept that the defendant had implemented prior to the accident an array of measures which were designed to protect its employees from injury whilst working with the mixers. These measures included the proximity switches attached to the grills at the top of the mixers. Also of significance were the complex system of maintenance procedures evidenced in the documentation annexed to the affidavit of Mr Hanson. Among other things, these procedures were designed to ensure that, before any work was conducted on a machine, the machine was isolated and danger tags placed at appropriate places, the appropriate supervisor was notified and all work was conducted by appropriate personnel. The defendant undoubtedly went to some lengths to explain these procedures to its production employees, including Mr Burcher.
35 However, the occurrence of the accident in this case indicates these procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its "paper systems" are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 at [26]. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997) at 4, for example, Fisher P said:
The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work. "Paper" systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant.
36 This is not, in my view, a case in which the accident resulted merely from the fact that an employee, or a number of employees, failed to follow a clear and safe procedure established by the employer. It is true that Mr Hanson stated that he would not have embarked upon the course of action adopted by Mr Burcher. He said he would have employed the procedure required for maintenance work which involved isolating the machine, seeking a work permit and notifying a supervisor. The evidence does not support a finding that this was the understanding held by the production workers concerning the necessary procedure to be adopted in the event that a blockage was encountered when draining the mixer.
37 There was at the very least a degree of uncertainty as to whether the employees were required to follow the maintenance procedures in the event that the mixer became blocked during the decanting process. The evidence was that it was not unusual for the mixer to become blocked during decanting and, when necessary, Mr Burcher had successfully removed the valve in order to allow the product to flow out of the mixer. The defendant's procedures did not unambiguously state that a blockage during the decanting process required the adoption of the maintenance procedure. The production workers appeared to regard Mr Burcher's method as an appropriate course of action. Notwithstanding the policies purported to be implemented by the defendant, the system that was, in fact, in place was inherently unsafe. It exposed the employees to the risk of parts of their body entering the open outlet of the mixer without ensuring that the mixer was turned off or isolated.
38 Furthermore, I am satisfied that there were a number of simple and straightforward steps which were available which would have prevented the accident occurring in this case. Following the accident, the defendant wired the bolts on all the ribbon mixers to prevent the flange from being removed, placed mesh over the outlets of the mixers to prevent employee's hands being drawn into the mixer and installed proximity switches on the flange to ensure that if the bolts were removed power to the mixer would be cut. In addition, the defendant conducted an audit of its equipment and upgraded control switches on various pieces of equipment. The defendant is undoubtedly entitled to credit for its swift actions aimed at ensuring that an accident of a similar nature does not occur in the future: see Tyler v Sydney Electricity at 5. However, the actions of a defendant following an accident may, in some situations, be an indication of the measures which should have been taken prior to the accident and that such measures were practicable: see WorkCover Authority of NSW Callaghan v Saunders Constructions Pty Ltd (unreported, Maidment J, CT 93/1062, 26 November 1993) at 7.
39 The nature and gravity of the offence may be evidenced by measures introduced by a defendant to safeguard employees from risks after an accident has occurred: McDonalds Australia at 111; WorkCover Authority of NSW (Inspector Piggott) v Capral (1998) 82 IR 468 at 478; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) at 20 and 21.
40 The failure of the defendant to take the steps discussed above reveals a failure on the part of the defendant to implement what would have been desirable layers of safety to protect its employees: see WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 429. Even if the written policies and procedures of the defendant had been sufficiently clear and comprehensive, a prudent employer in its position would also have implemented secondary measures to ensure that its employees were not exposed to avoidable danger. Where measures exist which would ensure that even employees who do not comply with established work procedures are protected from a known danger or the extent of any danger is minimised, the obligations imposed by the Act make clear that such measures should be adopted. Here, regardless of the policies in place, Mr Burcher would have been in no danger when removing the valve had the mesh or proximity switches been installed in the outlets at the bottom of the mixer.
41 As a result of the considerations noted above, I have formed the view that the offence is a sufficiently serious one to bring it above the lower end of the scale of culpability. I make clear that the objective seriousness of the offence is moderated by the fact that the defendant did have in place an elaborate set of systems designed to ensure the safety of its employees. In their application to this case, however, those systems were not sufficiently clear, nor were they sufficiently maintained in practice. The procedures which were in place were also not supported by secondary layers of safety which would have protected the employees whether or not they had adhered to the defendant's view of the written procedures. These failings exposed the defendant's employees to risk of serious injury.
42 It is, however, appropriate to consider various subjective factors which may properly lead to a reduction in the penalty which may otherwise have been imposed. The defendant is entitled to have its plea of guilty considered in the determination of penalty: see Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at 106-107; and Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 at 322. The defendant did not formally enter a plea until the commencement of the hearing. However, the proceedings were subject to a dispute concerning the adequacy of the particulars provided by the prosecutor and an arrangement was negotiated for the defendant to plead guilty to one of the two summonses originally issued. In these circumstances, I do not regard the plea to have been entered at an unduly late stage. I also do not believe that this is a case in which the plea of guilty was merely a recognition of the inevitable: cf. R v Winchester (1992) 58 A Crim R 345 at 350.
43 A major consideration raised by the defendant concerned its lack of prior convictions and conscientious approach to health and safety issues in the workplace. The prosecutor conceded that the defendant had no prior convictions and was entitled to have its record considered. However, the prosector stated that the offence was not an uncharacteristic aberration, but rather the result of a defective work system being in place for some time. Whilst Mr Burcher may have performed the operation which resulted in the accident on prior occasions, I do not believe this reduces to any significant extent the credibility of the defendant's record. In some cases, a defendant should properly be given little credit for a good record where they have allowed a patently unsafe practice to remain in place for many years, notwithstanding the fact that fortuitously no accident had occurred. This is not the case in the present matter. While an unsafe practice did develop in its operations, it was not demonstrated that the practice was in place for an extended period or that the management were aware of its existence. The defendant has exhibited a responsible attitude to issues of safety and has taken significant steps to implement occupational health and safety procedures. This approach is reflected in the defendant's record. The previous good industrial citizenship of the defendant will be taken into account in mitigation: McDonald's Australia at 144
44 The defendant co-operated with the WorkCover Authority in the investigation following the accident. This is another factor which should be taken into account in assessing the subjective features of the offence (even in the case of corporations): Alcatel at 107 (also see Huang (1994) 78 A Crim R 111 at 114).
45 I also accept that the defendant is contrite. Contrition, repentance and remorse after the offence are mitigating factors which may lead to a reduction in the sentence otherwise to be imposed: Department of Mineral Resources of NSW v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 (at para 64). Moreover, the defendants contrition was demonstrated by its actions, including the assistance provided to Mr Burcher and his family following the accident. Among other things, the defendant provided counselling for Mr Burcher and other employees involved in the accident. Representatives of the defendant visited Mr Burcher in hospital and the defendant offered to cover costs incurred by Mr Burcher and his family. The defendant also took steps to assist in Mr Burcher's rehabilitation and return to work. The defendant provided for Mr Burcher to return to the site as part of a desensitising process, created a special position for Mr Burcher and allowed him to return to work gradually. These actions are commendable and, in my view, should be reflected in the penalty to be imposed. I apply in this respect the judgment of the Full Bench in Corinthinian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 where it is stated (at para17):
We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. We have accordingly reached the conclusion that in all the circumstances of this case the penalty was inappropriate and excessive.