WorkCover Authority of New South Wales (Inspector Farrell) v MIM Transport Pty Limited

WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427 HEARING DATES: 11/08/2000; 06/12/2001 DATE OF JUDGMENT: 04/03/2002

PROSECUTOR: Mr M Cahill of counsel SOLICITOR: Mr S Pertsinidis Legal Services Branch - WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr H J Dixon SC SOLICITOR: Mr P Arthur Allen Allen & Hemsley

JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Walton J, Vice-President 3 April 2002

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP FARRELL) v MIM TRANSPORT PTY LIMITED. Prosecution under s16(1) of the Occupational Health & Safety Act 1983 JUDGMENT [2002] NSWIRComm 58

1 This matter concerns a prosecution brought by Inspector Anthony Farrell of the WorkCover Authority of New South Wales ("the prosecutor") of MIM Transport Pty Limited ("the defendant") pursuant to s16(1) of the Occupational Health & Safety Act 1983 ("the Act").

2 Section s16 of the Act is in the following terms: (1) Every employer shall 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) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work.

(3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section.

3 The prosecution arose from fatal injuries suffered by Wasyl Sabal ("the deceased"), an individual who was not an employee of the defendant, after he was struck by a forklift truck at premises occupied by the defendant on 22 August 1997 ("the incident").

4 Earlier in these proceedings the defendant, by way of an application to vacate a date previously set for the hearing of the matter, sought to raise issues as to the validity of the summons issued in this matter. That application resulted in a statement being issued by the Court on 25 July 2000. The matter subsequently came before the Court for directions on 14 August 2000, at which time the defendant resiled from its application and stated that it wished to "get on with this matter and have it dealt with by the Court". The Court raised some concerns as to the availability of such a course as the issue raised by the defendant concerned the jurisdiction of the Court. As such, it was ultimately for the Court to make a determination as to whether it had power to proceed with the matter. A further directions hearing and a provisional date for the hearing of the plea was set.

5 The matter was set down for further directions on 30 August 2000, at which time the parties were referred to a judgment of a Full Bench of the Commission in Court Session in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. That judgment resolved the issues raised by the defendant as to the validity of the summons. In the result, the defendant has entered a plea of guilty to the charge.

6 The prosecution was commenced by a summons issued on 4 August 1999. Leave was granted to amend the summons upon the hearing of the matter on 8 November 2000 and the matter proceeded on the basis of an amended summons filed on 17 March 2000. That amended summons (aside from formal details) was in the following terms: On the 22 August 1997 at premises off Old Maitland Road, Sandgate, in the State of New South Wales, the defendant, being an employer DID FAIL to ensure that persons not in its employment, and in particular Wasyl Sabal, 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 & Safety Act 1983.

7 The particulars of the charge contained in the amended summons were in the following terms: The defendant failed to:

1. To ensure that the key required to operate a Linde H40D model forklift truck was not left in the ignition of the forklift truck when it was parked and unattended.

Statement of Agreed Facts 8 A statement of agreed facts was admitted into evidence, by consent, in the following terms: 1. At all relevant times, the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health an Safety Act 1983 to institute proceedings in the within matter. 2. At all relevant times, the defendant, MIM TRANSPORT PTY LIMITED [ACN: 009 664 377] was a company duly incorporated with a registered office situated at Level 3, West Tower, 410 Ann Street, Brisbane in the State of Queensland. At the time of the incident, the defendant was known as Universal Transport Operations Pty Limited.

At all material times the defendant: (a) Carried on the business of road freight transport (b) Occupied factory premises at Old Maitland Rd, Sandgate in the State of New South Wales ("said premises"). (c) Owned and operated a Linde H40D model forklift truck at the said premises ("said forklift truck")

About 3.50pm on Friday 22 August 1997 Wasyl Sabal (74 years old) suffered fatal injuries when he was struck by the said forklift truck at the said premises which was the defendant's place of work. Wasyl Sabal was not an employee of the defendant. Sabal was trapped under the rear wheels of the said forklift truck and was released by Police Rescue. He was transported to John Hunter Hospital at Newcastle where he died as a result of the injuries sustained.

The Prosecutor carried out an inspection of the said premises and forklift truck on 22 August 1997. A factual inspection report was completed and photographs were taken.

The investigation revealed that the defendant was leasing Building "I" and part of building "D" at the said premises to conduct its business. On the day of the accident, the defendant was in the process of closing down its operations and vacating the premises. A number of the defendant's items had to be removed and placed on a truck to be transported to the defendant's principal place of business in Brisbane, Queensland. The only employee of the defendant who was present at the said site on the afternoon of the accident was Graham Harrison, the defendant's Operations Manager at the said site.

Sabal was Harrison's father-in-law. On the day of the accident, Harrison invited Sabal to the said premises so that Sabal could assist him to pack some items and clean the factory premises. Harrison told the Prosecutor that Sabal was retired and was bored at home so he had invited Sabal to the said premises on previous occasions (including the day of the accident) to give him something to do and assist with different tasks at the factory, such as washing Harrison's car or sweeping out the shed. This was done without the knowledge or permission of senior management of the defendant.

On the afternoon of the accident, the following persons were present at the said premises: (a) Graham Harrison (b) Wasyl Sabal (c) Peter Lyon: Lyon was a working director of Monscot Pty Limited at the time of the accident. Monscot Pty Limited had been contracted by the defendant to attend the said premises and to transport boxes of the defendant's office records from the said premises to the defendant's depot in Brisbane; (d) Garry Steel: Steel was unemployed at the day of the accident. Previously, he had been employed by the defendant for approximately four years as a driver. Steel had come to the said premises on the day of the accident to hand Harrison some documentation relating to the defendant and to say goodbye to Harrison before he left.

Harrison had been employed by the defendant since 1983. He had been appointed to the position of supervisor for the Sandgate depot in 1987. Prior to his employment with the defendant Harrison had been transport foreman at Comsteel Pty Limited for approximately 12 years.

In August 1997 the defendant was in the process of closing down a number of its premises in Newcastle (the premises), Sydney, Darwin, Melbourne and Townsville. A project committee had been formed by the then General Manager of the defendant, Kerry Noyes, in order to oversee this process. This committee appointed a "wind-up leader" for each depot that was being closed. The project committee advised the wind-up leaders on what documents were to be retained, the dates on which various matters had to be completed and when staff were to be retrenched. Harrison was appointed wind-up leader for the said premises.

As wind-up leader Harrison was responsible for removing all the office furniture at the said premises, packing up all documents and other equipment that were to be sent back to the Brisbane office of the defendant, shredding all documents that did not need to be retained and terminating various arrangements that were in place at the said premises for cleaning and other services.

On 22 August 1997 it remained for Harrison to finish packing boxes of documents, to arrange for the defendant's ute and forklift to be sent to Brisbane and to shred the remaining documents which were no longer required by the defendant. This was the last day of the wind-up of the depot at the said premises.

Harrison and Sabal arrived at the said premises together about 7.30am and commenced cleaning up. Lyon arrived about 2pm in his prime mover, Queensland registration "116-A11" and trailer, Queensland registration "689-QAY". Lyon assisted Harrison and Sabal to pack some boxes in the office in readiness for transportation. Steel arrived at the said premises about 3.15pm and saw Harrison, Sabal and Lyon in the process of completing the shredding of some paperwork.

Harrison used the said forklift on the morning of 22 August 1997 when he drove it out of the freight shed so that it could be swept out. He then returned the forklift to the freight shed.

At approximately 2pm Harrison drove the forklift truck out of the freight shed where it was stored and placed it near Lyon's truck. Harrison intended to use the forklift to load pallets onto the back of Lyon's truck. He left the keys to the forklift in the ignition.

After having shredded some paperwork, the men loaded the shredding machine onto the back of Harrison's ute. Harrison then left the said premises to return the shredding machine to the place the defendant had hired it from. Harrison left the three non-employees (of the defendant) at the said premises. It was whilst Harrison was away from the premises that the accident occurred.

Lyon, Sabal and Steel placed the packed boxes onto some wooden pallets in preparation to place them on the trailer. Lyon then went to the said forklift truck which was parked and unattended and saw that the key was in the ignition. He started the said forklift and commenced loading the first pallet onto the trailer. Steel and Sabal loaded the last four boxes onto a second pallet. When they had finished, Steel walked back inside the office and thought that Sabal was following him. Lyon had loaded two pallets on the trailer and was in the process of reversing the said forklift to line up the third pallet on the ground when he struck Sabal who was crushed under the wheels. Lyon stated: "… I then reversed back out in order to pick up the other pallet off the truck so I could place it against the first pallet of boxes. On moving forward I moved about a metre and half (sic) and I sensed something wrong with the fork, I stopped looked around and then noticed a coloured piece of rag on the ground that I did not notice before. I then got off the fork walked around the rear of it where I found a man (Sabal) faced (sic) down under the rear of the fork." 18. The evidence revealed that Lyon had struck Sabal as he was reversing the said forklift truck, but Lyon did not realise that something was wrong until he had moved a distance of approximately three (3) metres. Lyon estimated that he had travelled approximately "…7 or 8 metres" in reverse before he engaged forward. Sabal was lying face down pinned underneath the rear wheels of the said forklift truck. There is a blindspot to the rear of the said forklift truck which is caused by the rear canopy post structure and air cleaner intake pipe. Although Lyon stated he looked over both of his shoulders before reversing, he did not see Sabal.

The area where the accident occurred was a scaled asphalt area approximately 300 metres from the main gate of the complex between Buildings E and D which the defendant occupied. It was known as the common area, however Harrison indicated that the area where the accident occurred was only used by the defendant's employees and was considered out of bounds to other tenants in other buildings inside the complex.

Lyon was not the holder of a certificate of competency to lawfully operate the said forklift truck nor was he operating it pursuant to a learner's log book. Proceedings were commenced against Lyon in the Chief Industrial Magistrate's Court for a breach of Clause 8 of the Occupational Health & Safety (Certificate of Competency) Regulation, 1996 for operating the said forklift truck without being the holder of the recognised qualification to do that work. Lyon pleaded guilty to the charge on 15 November 1999 and was convicted and fined $3,500 plus costs. The maximum penalty for the offence was $10,000. The Corporation, Monscot Pty Limited, of which Lyon was a director, was deregistered on 8 April 1999.

Harrison stated that he was not aware that Lyon was going to operate the said forklift. Lyon had not sought and was not given permission from Harrison to operate the forklift. Harrison stated that he expected the three men to be in the office and "[He] did not feel that there was any need to delegate authority … I expected them to be having a cup of coffee!".

However, Lyon stated that he had previously operated the said forklift truck at the defendant's premises "a couple of times over the years" when he had attended the said site. Harrison stated he was not aware that Lyon had operated the said forklift truck on prior occasions nor had he given permission for Lyon to operate the said forklift. Further, Harrison believed Lyon was aware of the policy that "[Lyon] was not to drive the forklift".

Harrison confirmed that the keys of the said forklift truck had been left in the ignition. He stated that it was common practice for employees of the defendant at the Newcastle depot (including himself) and others who worked in the industry to leave the keys in the ignition during working hours when the forklift trucks were parked and unattended.

The defendant maintained only one forklift truck on the premises. At the time of the accident, the defendant had a document known as "Forklift Operations - Policy" ([the] "said policy"). Annexed and marked Annexure "A" is a copy of the said policy. Relevantly, the said policy stated: · Training & Licensing of Forklift Operations: 1.1 No unlicensed person shall operate a forklift to carry out operational duties. … · Operations: 3.1 The operations of forklifts are to be conducted in a manner as prescribed in Australian Standard AS2359.2 "SAA Industrial Truck Code, Part 2 - Operations" and will always exceed the requirements of all relevant State and/or Federal legislation. · Safe Operating Distances: 4.1 When forklifts are loading or unloading freight all personnel are to move to a safe location/position well clear of the operating area and any potentially dangerous situations. 4.2 Forklift operators are to immediately stop work if any person is in a potentially dangerous situation/location and instruct the person to move to a safe location. 4.3 Supervisors should be consulted if doubts exist as to what is "potentially dangerous" or unsafe. · Security of Forklifts: 16.1 During "out of Hours" periods forklifts are to be locked inside the freight shed, if possible, and the keys left in the ignition. 16.2 If the forklifts cannot be secured in the freight shed, they are to be parked inside the depot and the keys removed; the keys are to be secured in a safe location. 25. Relevantly, Australian Standard 2359.2 - 1985 (which is not called up by any Act or Regulation) states: 3.1 UNATTENDED INDUSTRIAL TRUCKS Before leaving an industrial truck unattended, the operator shall observe the following precautions, (g) Turn off the power and remove the key. 26. Although he had been provided with a copy of the defendant's said policy, Harrison (the defendant's Operations Manager at the said site) states he had not received any training or instruction on how to implement and maintain the systems outlined regarding the use of forklifts in the said policy.

Harrison had attended a number of supervision conferences in Brisbane and a two day Occupational Health and Safety course during his employment at UTO. Harrison also attended a number of courses relevant to his role as supervisor.

Harrison was trained as a forklift truck driver at the requires (sic) of UTO under the direction of qualified trainers. To qualify for his forklift licence Harrison was required to read, understand and be familiar with the guide for forklift truck drivers issued by WorkCover.

As the Operations Manager of the Sandgate depot, Harrison was responsible for the management of the forklift truck. Harrison stated that the normal system of work in relation to loading and unloading vehicles at the said Premises was that "(He) or the other UTO employee Christie Logan would load or unload as "required".

It is alleged that the defendant, MIM TRANSPORT PTY LIMITED, has breached Section 16(1) of the Occupational Health & Safety Act, 1983 on 22 August 1997 at Sandgate in the State of New South Wales, in that being an employer it failed to ensure that persons not in its employment, and in particular, Wasyl Sabal, 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. In particular, the defendant failed: (a) To ensure that the key required to operate a Linde H40D model forklift truck was not left in the ignition of the forklift truck when it was parked and unattended.

9 Paragraph 2 of the statement of agreed facts established that the defendant was, at the time of the incident, operating under another name, namely Universal Transport Operations Pty Limited ("UTO"). Upon the hearing of the matter, Mr Dixon SC, who appeared for the defendant, confirmed that UTO could be referred to interchangeably with the defendant in these proceedings. As such, whether reference is made to either MIM Transport Pty Ltd or Universal Transport Operations Pty Limited, I shall use the nomenclature of "the defendant".

Evidence for the Prosecutor 10 Aside from the statement of agreed facts, the prosecutor tendered into evidence a factual inspection report containing 21 colour photographs of the incident site, a copy of a segment of the Australian Standard AS 2359.2-1985 entitled "SAA Industrial Truck Code - Part 2 - Operation", an extract from a publication of the WorkCover Authority of New South Wales entitled "A Guide for Forklift Truck Operators" and a report from the WorkCover Authority's prior convictions database indicating that the defendant had no prior convictions.

11 The Australian Standard makes reference to various matters relating to the operation of a forklift truck. Relevant for present purposes is section 3.3 of the standard, which is in the following terms: 3.3 UNATTENDED INDUSTRIAL TRUCKS

Before leaving an industrial truck unattended, the operator shall observe the following precautions: (a) Preferably park on level ground (b) Where unavoidably parked on an incline, chock the wheels. (c) Do not park where other traffic may be obstructed. (d) Ensure that no part of the industrial truck is closer than 2 m to the nearest rail of a railway track. (e) Lower attachments (including fork arms) so that they are as close as possible to, and if possible touching, the operating surface. (f) Apply the parking brake. (g) Turn off the power and remove the key. (h) Close the fuel-isolating valve on LP gas-fuelled industrial trucks. (i) [(i)] Place the gearbox of industrial trucks within manual transmission into low gear.

Evidence for the Defendant 12 The defendant relied on the affidavit of Mr Kerry Noyes, the General Manager of the defendant from 1991 to 1997 and an affidavit of Graeme Joseph Harrison, the Operations Manager of the defendant at the time of the incident. Neither person was required for cross-examination.

13 Mr Noyes gave evidence as to the organisational structure of the defendant and of the various reporting systems in place at the time of the incident. He deposed to Mr Harrison being a responsible and experienced manager who had been most reliable in the performance of his duties. He considered that the defendant "had no reason to doubt his reliability or diligence in the performance of his tasks".

14 The defendant had established various policies and procedures as to the safety of its operations, including the premises at which the incident occurred. These included a general occupational health and safety policy, a separate policy containing established occupational health and safety procedures, a policy relating to the operation of forklifts and site induction and emergency action plans.

15 The general occupational health and safety policy of the defendant contained a statement of the defendant's global approach to matters of health and safety, as follows: Universal Transport Operations Pty Ltd recognises the importance of the safety, health and welfare of all employees. It is the policy of Universal Transport Operations Pty Ltd to undertake all reasonable and practical measures to safeguard our employees from work injuries by the limitation of unsafe work conditions and practices in all aspects of our activities.

16 The occupational health and safety procedures policy ("the procedures policy") stated its purpose as being "to define the procedures in matters of occupational health and safety to exact the occupational health and safety policy", referred to above. The procedures policy identified the hierarchal structure of responsibility for safety matters, the top tier being the operations manager. The policy stated: Operations Managers have the overall responsibility for safety within their depot and are accountable to their Business Manager for safe work practices. ...

17 The procedures policy mandated that each depot conduct safety meetings. The policy established a system whereby issues which were identified in the safety meetings were dealt with by the defendant. It also provided a system for the identification, assessment and control of hazards at the defendant's depots. The policy required that "at least once per month" operations managers conduct an inspection of their depot to identify potential hazards. Lower level managers were required to conduct hazard identification inspections of their particular areas every two months. The procedures policy established a system for action based on any hazard identified by these inspections. It made provision for the use of motor vehicles and the carrying out of risk assessments for dangerous or hazardous work practices. The relevant parts of the policy were as follows: 9. Driving Licenses & Operators Permits. 9.1 No employee is to operate any motor vehicle, forklift or crane unless they have a current license or permit. Drivers License & Operators Permits Policy (Operations 006-09) details the policy and procedures. 10. Dangerous or Hazardous Work Practices

10.1 Where dangerous or hazardous work practices are conducted a risk assessment is to be conducted and procedures written to identify the risk, minimize the risk and action to be taken in the event of an accident.

10.2 The assistance of Safety Officers, the Dangerous Goods and Environmental Protection Co-ordinator or outside consultants should be sought to formulate risk assessment and written procedures.

18 The defendant had in place a policy for the operation of forklifts on its premises. This policy set out the defendant's operational requirements in relation to matters, such as, safe operating distances for persons in areas where a forklift was in operation, the loading and unloading of unstable or potentially dangerous materials, the use of fork arm extensions, warning systems and like matters. Relevantly, for present purposes, the policy required that all forklift operators were "to be trained and comply with all license and training log book requirements" and that "no unlicensed person shall operate a forklift to carry out operational duties".

19 The policy made the following general provision as to 'forklifts':

3. Operations 3.1 The operations of forklifts are to be conducted in a manner as prescribed in Australian Standard AS2359.2, "SAA Industrial Truck Code, Part 2 - Operations", and will always exceed the requirements of all relevant State and/or federal legislation. 3.2 In addition, UTO standards specifically prohibit:

(a) The use of two or more forklifts to lift a heavy load; (b) A forklift will not be used to load another forklift onto any trailer or elevated platform/s. 20 In relation to how forklifts were to be left when unattended, the policy provided: 16. Security of Forklifts 16.1 During "out of hours" periods forklifts are to be locked inside the freight shed, if possible, and the keys left in the ignition. 16.2 If the forklifts cannot be secured in the freight shed they are to be parked inside the depot and the keys removed; the keys are to be secured in a safe location.

21 Mr Noyes stated the defendant had made "every effort" to ensure that these policies and procedures were observed. Reminders were issued, ongoing training was provided and, more particularly, a safety auditing and reporting system (described as being an "integral part" of the defendant's safety program) was in place. A copy of an audit form completed during an inspection on 17 June 1996 by Mr D Thoumine, the then Training and Safety Officer of the defendant (which included a review of the policies and procedures in place for the use of forklifts), was attached to Mr Noyes' affidavit.

22 The audit form required that the various matters listed be given a rating of either 'good', 'satisfactory', 'needs upgrading', 'hazard requires immediate action' or 'not applicable'. The audit form specifically identified 15 specific areas for review. One of the specific areas identified in the audit form was entitled "Forklifts". The review identified the following matters: a) Tyne extensions in good condition, locking pins intact etc b) Reduced SWL displayed on forklift for tyne extensions c) Warning beepers operating d) Operators certified e) System of regular maintenance f) No apparent safety defects g) Forklift registration displayed (if applicable) h) Fire Extinguisher fitted i) Safety cage used correctly when required

23 The only other part of the audit form relevant to the operation of forklifts was located under the heading "Unsafe Work Practices Observed", where the report required a grading to be given on the "Safe Operation of Forklifts". In the evidence before the Court the Sandgate depot was given a rating of 'satisfactory' on the audit form.

24 A report based on the completed audit form was attached to Mr Noyes' affidavit. The report specifically referred to the audit having been undertaken so as to "check for compliance" with various policy standards set by the defendant and, in particular, "N.S.W. WorkCover Authority requirements". Relevantly, the audit report identified those persons who should obtain a license to operate a forklift and named three employees who successfully completed assessments on the operation of a forklift during the audit inspection. The general conclusion reached in the report was that the depot was considered a "safe workplace".

25 It should be noted that in neither the audit form, or the audit report, is there any specific mention as to compliance by the defendant with policies of the WorkCover Authority, nor the defendant's own policies in relation to the operation of forklifts.

26 Mr Noyes gave evidence of specific training programs undertaken by Mr Harrison while in the defendants employ. These courses were entitled "Occupational Health and Safety Course for Managers", "A Depot Safety course" and a "Workplace Assessor course". Various workbooks and assessment items for the aforementioned courses were annexed to his affidavit.

27 Mr Noyes also stated in his affidavit that signs had been posted at the entrances to the Sandgate depot warning that entry was subject to conditions and by prior appointment only. Additionally, Mr Noyes stated the defendant spent an amount equal to approximately 3% of the defendant's payroll on occupational health and safety matters annually.

28 As to the winding up of the Sandgate depot, Mr Noyes deposed: 20. Graham Harrison was appointed as wind-up leader for the Sandgate Depot. In my view he was suitably qualified and equipped to carry out the tasks required of him in that regard. As wind-up leader Mr Harrison was responsible for and entitled to engage such persons as were necessary to enable him to vacate the leased premises in an orderly manner and leave the Sandgate Depot in an acceptable state.

29 As to the circumstances applying at the premises at the time of the incident, he stated: 21. During the time that I was General Manager of UTO, it would have been regarded as a serious breach of company policy for an employee, in particular the Operations Manager, to leave the Depot unattended or in the hands of non-employees. 22. Disciplinary action would have been taken against any person responsible.

30 He also deposed to there being no other accidents or injuries of any kind at the Sandgate Depot during the time he was General Manager (a period of six years). 31 In his affidavit, Mr Harrison stated that he was responsible for the day to day operation of the Sandgate depot, including responsibility for access to the site and the use of the forklift truck. He indicated that the policy stated: Operations Managers have the overall responsibility for safety within their depot and are accountable to their Business Manager for safe work practices.

32 Mr Harrison gave evidence of having attended a number of training courses whilst he was in the defendant's employ. He gave evidence that the defendant had one forklift truck in operation at the Sandgate depot. He was one of only two persons permitted to operate the vehicle and held the relevant 'certificate of competency' to permit him to operate a forklift. In order to obtain that certificate of competency he was "required to read and become familiar with a booklet produced by WorkCover, … entitled 'A Guide For Fork Lift Truck Drivers'". A copy of a page purportedly derived from that booklet was annexed to the affidavit. The page contained a section of the booklet which bore the heading "Parking". This document will require some additional discussion later in this judgment.

33 Mr Harrison stated the defendant had in place a number of policies regulating the health and safety of employees in the workplace. Specifically, he referred to the forklift operations policy. Mr Harrison deposed that he was responsible for enforcing the defendant's policies, including the forklift operations policy. He did so, in part, by refusing permission to any truck drivers who attended the premises to use the forklift for loading or unloading their vehicles.

34 As to the practice in relation to the use of the forklift at the defendant's Sandgate depot, Mr Harrison stated in his affidavit: During "out of hours" periods the forklift was parked inside the freight shed and the keys left in the ignition. However, the freight shed was locked and the keys to it were retained by me in my office. In 1996, it also became customary to lock the shed during working hours when the forklift was inside and not in use. If anyone needed to gain access to the shed, they had to obtain the key from Christy Logan or me.

35 As to the closure of the Sandgate depot, Mr Harrison stated he was appointed to be the wind-up manager for the site and, as such, had full responsibility for the removal of all the defendant's property and ensuring the premises were left in a reasonable state. The defendant's business had ceased to operate from the Sandgate depot on 10 August 1997. There remained very little to be done by the date of the incident.

36 Mr Harrison gave evidence in his affidavit as to the circumstances applying at the Sandgate depot on the day of the incident as follows:

29. Earlier in the day I had removed the forklift truck from the freight shed so that the shed could be swept out. The forklift was then returned to the freight shed.

30. At about 2.00pm I again removed the forklift truck from the freight shed since I intended to use it to load some pallets onto the back of Peter Lyon's truck and then drive it onto the float which was expected to arrive at approximately 4.00pm. This float was to transport the forklift, the utility and various boxes back to the depot in Brisbane.

I also had to return a shredder to Kennards Hire in Hexham, before doing so I had a conversation with Peter Lyon telling him that I was going to do so but I cannot recall the full details of that conversation.

After this conversation and while I was completing the loading of the shredder onto my utility for delivery, the other three commenced packing the boxes onto the pallets just outside my office.

I then left the Sandgate Depot. I did not instruct or request or give permission for anyone to operate the forklift in my absence and had no expectation that they would do so.

As there was no work to be done until I returned, I expected the three remaining people to be in the office waiting for me. I did not feel there was any need to delegate authority as I expected them to be having a cup of coffee.

As there were only three people on the Sandgate Depot whilst I was away and I did not expect them to touch the forklift in my absence I did not feel there was any need to remove the key.

I had never previously witnessed Peter Lyon drive the forklift on the Sandgate Depot. 37 Mr Harrison then deposed he received a phone call informing him of the accident which had occurred in his absence.

38 As earlier identified, part of the material tendered by the prosecutor was a single page document purporting to be a segment of a workbook produced by the WorkCover Authority entitled "A Guide for Forklift Truck Drivers" which was used in the training and certification of forklift operators. That one page document contained a section from the workbook entitled "Park Safely", in the following terms:

· Always find a place to park out of the way · Do not park near power switches of fire fighting appliances · Park with the tips of the forks on the ground and with the tilt forward · Turn the ignition off · Engage low gear (for internal combustion FLT's) · Engage handbrake

39 Attached to the affidavit of Mr Harrison was a document, purporting to be a page from a booklet produced by the WorkCover Authority, which he received during the training and certification process that he had undertaken in order for him to attain the relevant certificate of competency to operate a forklift. The page annexed to Mr Harrison's affidavit was in the following terms: Parking a) Always find a level out- of-the-way place to park. b) Park clear of fire and emergency exits, power switches, fire fighting appliances, first aid facilities, gas fuelling stations and fuel pumps. c) Park with the tips of the forks on the ground and with the tilt forward. d) Turn the ignition off and remove the key. e) Engage low gear (for internal combustion FLT's) f) Engage handbrake. g) If the tips of the fork cannot be lowered to the ground park so that the forks do not create a tripping hazard.

40 After the close of their submissions, the prosecutor and the defendant were given an opportunity to make inquiries as to the form of the document applying at the time of the incident. The Court was informed by further written submissions that, despite exhaustive searches by the prosecutor and the defendant, the form of the publication at the time of the incident could not be discovered. However, the parties jointly submitted that the extract from the booklet attached to Mr Harrison's affidavit should be taken as the 'guide' in use at the time of the incident and, therefore, form the basis for sentencing in this matter. I shall adopt that course. Submissions Prosecutor's Submissions on Penalty

41 Mr M Cahill of counsel, who appeared for the prosecutor, submitted that it was the risk to safety emanating from a key being left in the ignition of a forklift truck, used in the course of the defendant's operations, whilst the vehicle was parked and unattended, that gave rise to the fatal injuries suffered by Mr Sabal.

42 The prosecutor submitted that the primary factor in assessing penalty is the objective seriousness of the offence charged: WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31], R v Dodd (1991) 57 A Crim R 349 at 354; and, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. In the present case, the maximum penalty at the time of the incident was $500,000.

43 It was submitted that both specific and general deterrence should weigh heavily in the Court's determination of penalty in this matter: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29.

44 Mr Cahill submitted the principal aim of the Act was to ensure safety in the workplace. If that aim is to be achieved, employers must maintain constant vigilance and take all practical measures to secure safety in the workplace. The Act works in a commercial environment and the aims of the Act are not likely to be achieved if the Court imposes penalties that are unrealistically low: Capral Aluminium. The nature of the breach and its consequences call for the imposition of a penalty which will act to reinforce, in the mind of this particular offender, the need to adopt and maintain a pro-active stance in relation to accident prevention, secure a review of any inappropriate industrial practice (whereby forklifts are left unattended with their keys in situ) and to deter other operators who do not presently safeguard their equipment against unauthorised use: James Moore v Vibro-Pile (Aust) Limited [1997] NSWIRComm 69.

45 The incident resulted in the death of Mr Sabal. Whilst the gravity of the offence does not, of itself, dictate the appropriate penalty, what flows from a breach is clearly relevant as a measure of the gravity or seriousness of the breach and ipso facto the measure of culpability of the defendant: WorkCover Authority of New South Wales (Inspector Ian Tyler) v Sydney Electricity (Industrial Court (NSW), Unreported, 23 March 1993 per Hill J at 7). 46 The need to secure industrial trucks is clearly identified by the relevant Australian Standard AS2359.2-1985 and in the section on "Parking" in "A Guide for Forklift Truck Drivers" published by the WorkCover Authority of New South Wales. These standards provide a measure against which both the practice of the particular defendant and the purported industry practice may be measured: James Moore v Vibro-Pile.

47 Mr Cahill submitted that the essence of the offence was the failure to remove the key from the ignition of the vehicle when left parked and unattended. He submitted that as this was "the nub of this case", the fact that the defendant's policy on the use of forklifts did not provide a specific direction for the defendant's operators to remove the key from an unattended forklift was relevant to the assessment of penalty. It was submitted that, whilst the policy document purported to pick up the safe practice set out in the standard, it did not actually direct anyone's mind to the specific terms of the standard. 48 Further, and as earlier mentioned, it was submitted that the actual practice at the defendant's premises differed significantly from the standard which was adopted by the defendant's policy. In that regard, Mr Cahill referred the Court to paragraph 23 of the statement of agreed facts. It was submitted that Mr Harrison there confirmed that the keys to the forklift truck had been left in the ignition and that it was common practice for employees of the defendant at the Newcastle depot, including himself (and indeed others who worked in the industry), to leave keys in the ignition during work hours when forklift trucks were parked and unattended. 49 It was in this context, the prosecutor submitted, that the Court should be critical of the defendant's policy in so far as it had failed to specify the particular requirements of the standard. Further, it was submitted that a written policy was of no significance if it is not promulgated and enforced. It was submitted that this should be reflected in an appropriate sentence.

50 It was submitted the nature of the risk was evident to the defendant prior to the incident. The defendant's depot, whilst closed to the general public, was open to regular visitation by truck drivers who attended the premises for the specific purpose of loading and unloading goods. Mr Cahill submitted that the risk to injury was readily foreseeable: James Moore v Vibro-Pile. This necessarily resulted in the offence being of a more serious nature: Capral Aluminium.

51 The unauthorised use of an industrial truck by an untrained operator, it was contended, carried with it a significant risk of injury to both the unauthorised operator and those in the vicinity. The subject risk was easily avoided by removal of the keys when the forklift was unattended. Mr Cahill submitted that, whilst it was common ground the defendant had in place a policy that non-employees were not to drive the defendant's forklift, the evidence was consistent with a failure to ensure that the defendant's policy was effectively promulgated and enforced.

52 As to the subjective features of the matter, Mr Cahill submitted there had been an early plea of guilty and that the defendant had provided assistance to the prosecutor in its investigation: Lawrenson Diecasting; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312; and, Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99. In this regard, the Court should have regard to the approach of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383, in particular, the observations set out in the judgment of the Chief Justice at [160 - 162]: see also WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179.

53 It was submitted that, when assessing the value of co-operation with investigative authorities, the Court should have regard to the degree of assistance provided by the defendant. In this case, the defendant undoubtedly assisted the prosecutor. In particular, the Court should have regard to the fact that the defendant made its employees available for interview by the prosecutor: see R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 21 NSWLR 220. The defendant is also entitled to a greater reduction in penalty if it is satisfied that the plea reflects contrition on the part of the defendant: R v Winchester (1992) A Crim R 345.

Defendant's Submissions on Penalty 54 Mr H J Dixon SC, who appeared for the defendant, submitted the defendant has co-operated with the prosecutor and entered a plea of guilty at an early stage of the proceedings (in circumstances where a plea of guilty was not inevitable) and had expressed contrition following the incident. Further, the defendant had no prior convictions. These were matters the defendant was entitled to have taken into account in its favour when the Court was determining an appropriate penalty.

55 As to the nature and quality of the offence, it was submitted the defendant was conscious of the need to provide a safe workplace for its employees and, as such, had in place extensive safety policies which included monitoring, auditing and follow-up processes: Nesmat. The defendant was actively involved in the promotion of safety at its workplace: Harrison's Joinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Richey) (1997) 88 IR 120. It was submitted that this was evidenced by the defendant's Operations Manager, Mr Harrison, having been involved in the implementation of health and safety matters at the defendant's premises.

56 As for the criticism levelled at the defendant's policy in relation to the securing of forklifts, Mr Dixon submitted that the policy should be read as importing the relevant Australian Standard into the defendant's own policy. It was contended the specific matters referred to, both in the defendant's policy and in the Standard, were matters that the company thought were of such importance as to warrant specific attention in the defendant's policy.

57 It was submitted that access to the defendant's premises was controlled. The defendant displayed signage at each of the entrances to its premises indicating that entrance was by appointment only. Restrictions on access were even more strictly enforced after the business was closed. It was also contended that leaving the defendant's depot unattended was a serious breach of the defendant's policies. That breach would ordinarily have required disciplinary action to be taken. It was submitted that the circumstances in which the accident occurred were a "one off event" which did not reflect the defendant's previous or ongoing approach to the safety of persons situated at its premises.

58 Mr Dixon relied on the fact that there were no trading activities on the day in question, nor were there any employees performing normal duties. The defendant was in the final process of winding up its operations. It was submitted that, as it was the defendant's final day on the premises, there was very little remaining to be done. In order to achieve the winding up of the Sandgate operation, the defendant appointed its most senior employee (who was well trained in safety matters at that site) as the 'wind-up' manager so as to ensure that the premises were vacated and left in a reasonable condition.

59 Mr Harrison had the overall responsibility for safety at the site. However, he invited non-employees onto the site to assist in the winding-up process. This was done without the knowledge of the defendant or the defendant's permission. Further, it was submitted that it was a serious breach of the defendant's policies to leave the depot in the hands of non-employees. The defendant was not aware of and did not provide permission to Mr Harrison to take that action.

60 It was submitted Mr Harrison was a responsible and experienced manager, trained in and aware of the defendant's policy to provide a safe workplace and, in particular, the defendant's policy in relation to the operation of forklifts on its premises. Further, Mr Dixon contended that when Mr Harrison left the site, he breached the company's policy by leaving the keys in the forklift whilst it was parked and unattended. The defendant had no reason to believe that an unqualified non-employee would operate the forklift on its site, against company policy, and without the permission of its operations manager.

61 The defendant had no reason to expect that a competent and experienced manager, such as Mr Harrison, would not exercise proper care and supervision over persons on the defendant's premises. Mr Dixon submitted that it was for these reasons that the risk to the safety of Mr Sabal was not reasonably foreseeable. The fact that the matter was not reasonably foreseeable "bears critically on the nature and quality of the offence and the degree of culpability of the defendant": Nesmat at 223.

62 Mr Dixon drew attention to the fact that Mr Lyon was prosecuted for illegally using the forklift and was fined $3,500 in circumstances where the maximum penalty was $10,000. Mr Harrison was not individually charged. It was submitted that the role of the defendant, Mr Lyon and Mr Harrison is a factor relevant to the determination of an appropriate sentence: McDonald's, Page v Walco Hoist Rentals Pty Ltd (No. 2).

63 As to deterrence, Mr Dixon submitted there was no requirement in this case for a component of the penalty to reflect specific deterrence. The company had a very good record. It has since ceased operating and there can be no real benefit in a specific deterrence element being built into any penalty imposed.

Findings of Fact 64 At the time of the incident, the defendant was in the process of winding up its operations from the Sandgate site. The evidence disclosed that the defendant had ceased all trading operations from the Sandgate site and had only one employee left working on the premises who performed functions relating solely to the winding-up of the defendant's business operations. Indeed, as was disclosed in paragraph 12 of the statement of agreed facts, the day of the incident was the last day of the winding-up operations for the Sandgate site. The defendant, on the day of the incident, could hardly be said to have been under normal operating conditions. It may be the case that these unusual operating conditions led Mr Harrison to leave the premises whilst non-employees of the defendant remained at the site in a manner contrary to the normal operating procedure of the defendant.

65 The unusual operating conditions experienced by the defendant, at the depot at the date of the incident, is a factor which may result in a mitigation of the offence. However, there is a further factual question bearing significantly upon the assessment of the objective seriousness of the offence. That question concerns the extent to which the defendant, by promulgation of policy, the enforcement of such policies and the supervision of its operations (and specifically the use of forklifts), had prohibited the procedures which were, in fact, adopted by Mr Harrison on the day of the incident. Put slightly differently, the question remains whether the action of Mr Harrison, in leaving the keys in the ignition of the forklift, in circumstances in which he had positioned that vehicle in readiness for the loading of the truck operated by Mr Lyons, was, of itself, an unusual practise at the depot such that those actions represented a significant departure from the defendant's operations as they had, in fact, been conducted over time. That consideration will have a bearing upon the extent to which the defendant's culpability is reduced because of the nature of the closure of operations.

66 The defendant had in place a policy for the use of forklift trucks on its premises. The relevant portions of the policy were in the following terms: 1. Training & Licensing of Forklift Operators

1.1 All persons operating forklifts are to be trained and comply with all licence and "training log book" requirements. No unlicensed person shall operate a forklift to carry out operational duties.

1.2 Any person under training must be in possession of a "training log book" and be under constant supervision of an experience forklift operator. The training log book must be maintained in accordance with the relevant State requirements.

3.1 The operations of forklifts are to be conducted in a manner as prescribed in Australian Standard AS2359.2, "SAA Industrial Truck Code, Part 2 0 Operations", and will always exceed the requirements of all relevant State and/or federal legislation.

3.2 In addition, UTO standards specifically prohibit: (a) The use of two or more forklifts to lift a heavy load; (b) A forklift will not be used to load another forklift onto any trailer or elevated platform/s.

16.1 During "out of hours" periods forklifts are to be locked inside the freight shed, if possible, and the keys left in the ignition.

16.2 If the forklifts cannot be secured in the freight shed they are to be parked inside the depot and the keys removed; the keys are to be secured in a safe location.

67 The policy adopts the relevant Australian Standard (AS 2359.2). The portion of that Standard relating to an unattended industrial truck was in the following terms: 3.3 UNATTENDED INDUSTRIAL TRUCKS Before leaving an industrial truck unattended, the operator shall observe the following precautions: (a) Preferably park on level ground (b) Where unavoidably parked on an incline, chock the wheels. (c) Do not park where other traffic may be obstructed. (d) Ensure that no part of the industrial truck is closer than 2m to the nearest rail of a railway track. (e) Lower attachments (including fork arms) so that they are as close as possible to, and if possible touching, the operating surface. (f) Apply the parking brake. (g) Turn off the power and remove the key. (h) Close the fuel-isolating valve on LP gas-fuelled industrial trucks. (i) [(i)] Place the gearbox of industrial trucks within manual transmission into low gear. 68 The defendant's policy makes reference to the relevant Australian Standard (which, in terms, requires keys be removed from an 'unattended' forklift), but does not set out in the policy the actual terms of the standard.

69 Thus, the defendant's policy as to the use of forklifts did not make any specific reference to a requirement to remove the keys from the vehicle's ignition if left unattended during normal working hours. The 'security of forklifts' provision of the policy (see cl16.2) appears to relate only to the storage of the vehicles "out of hours". Clause 16.2 appears to be directed to securing forklifts and specifies an alternative means of doing so (than that provided in cl16.1) where a forklift cannot be locked in a shed after hours. This approach, as to the construction of the policy, is also commensurate with Mr Harrison's evidence which distinguished 'out of hours' procedures from the procedures adopted during work hours. 70 All persons who operated a forklift for the defendant were trained and licensed to do so. As part of that training and licensing process the defendant's operators were required to review and become familiar with a booklet produced by the WorkCover Authority entitled "A Guide for Forklift Truck Operators". That guide contained express reference to the requirement of removing and securing the keys to a forklift when it was left unattended. The relevant portion of that guide (noting what has already been stated as to the form of the document appropriate to be considered by the Court) was in the following terms: Parking a) Always find a level out- of-the-way place to park. b) Park clear of fire and emergency exits, power switches, fire fighting appliances, first aid facilities, gas fuelling stations and fuel pumps. c) Park with the tips of the forks on the ground and with the tilt forward. d) Turn the ignition off and remove the key. e) Engage low gear (for internal combustion FLT's) f) Engage handbrake. g) If the tips of the fork cannot be lowered to the ground park so that the forks do not create a tripping hazard.

71 A factual issue which arose in the proceedings was whether the actual practices adopted at the defendant's Sandgate premises with respect to forklift operations differed from any policy which was promulgated or attempted to be promulgated by the defendant. That issue concerned whether there had developed at those premises a practice with respect to the use of the forklift during working hours whereby the keys of the forklift were left in the unattended vehicle from time to time when it had been removed from the shed in anticipation of use or momentarily out of operation whilst the operator engaged in some other activity.

72 Mr Cahill referred, in this respect, to paragraph 23 of the statement of agreed facts, which I shall repeat for convenience, as follows: 23. Harrison confirmed that the keys of the said forklift truck had been left in the ignition. He stated that it was common practice for employees [of] the defendant at the Newcastle depot (including himself) and other[s] who worked in the industry to leave the keys in the ignition during working hours when the forklift trucks were parked and unattended. 73 Mr Dixon submitted that this needed to be understood in terms of a "broader context", that is, it needed to be read in the light of the evidence provided by Mr Harrison in his affidavit. That evidence was, in summary, to the effect that when the forklift was not in use, be it during or after working hours, it would be left in a shed with its keys in the ignition. However, the shed itself would be locked in the shed so that even with the keys in it, the forklift was kept secure.

74 Paragraph 23 of the statement of agreed facts provided that it was the "practice for employees of the defendant at the Newcastle depot" to leave the keys in the ignition of a forklift when "the forklift trucks were parked and unattended" during working hours. Paragraph 10 of the statement of agreed facts makes clear that reference to the 'Newcastle depot' in paragraph 23 is merely an alternative description of the Sandgate depot and thereby refers to the premises at which the incident occurred in this matter.

75 As earlier noted, the evidence of Mr Harrison was in the following terms: During "out of hours" periods the forklift was parked inside the freight shed and the keys left in the ignition. However, the freight shed was locked and the keys to it were retained by me in my office. In 1996, it also became customary to lock the shed during working hours when the forklift was inside and not in use. If anyone needed to gain access to the shed, they had to obtain the key from Christy Logan or me. 76 For the Court to take matters into account in a way that is adverse to the interests of a defendant in sentencing proceedings it is necessary that the matter be proved beyond a reasonable doubt: R v Olbrich (1999) 199 CLR 270.

77 I am satisfied to the requisite standard that upon the basis of the statement of agreed facts and Mr Harrison's evidence, the practice adopted at the defendant's Sandgate depot was that the keys to the forklift would be left in the ignition of the vehicle when the forklift had been removed from its storage shed, parked and left unattended in anticipation of use or during the course of some work (where the operator was temporarily occupied away from the forklift for whatever reason). In other words, a practice which had operated at the depot was that the keys were left in the ignition in circumstances where the vehicle was not stored in the shed during working hours.

78 The evidence of Mr Harrison is not entirely clear. He stated that a 'custom' developed from 1996. It would appear that Mr Harrison, by the use of this expression, intended to distinguish a 'policy' or stipulated work procedure (otherwise referred to in his evidence) from a custom or usage at the workplace. The custom involved locking the forklift in a shed during working hours in a manner similar to the procedure adopted with respect to the securing of the forklift 'out of hours.' However, on his evidence, the new 'custom' only applied to circumstances where the forklift was 'inside' and 'not in use'. By this description, it would appear that the new practice applied itself only where the forklift was not required for actual use during working hours. Where the vehicle was not intended for use it was then secured 'inside', that is, secured consistently with the 'out of hours' policy. Mr Harrison's evidence does not directly touch upon circumstances where a forklift was 'in use' or made ready for use (and thereby located outside of the shed). It may, however, be reasonably inferred from his affidavit that neither the 'custom' nor 'out of hours' policy applied in those circumstances. 79 There was no evidence led by the defendant that a practice or custom existed whereby keys were removed from the forklift in the ordinary course when it was in a state of anticipated use or left unattended during an operation involving its use. On the other hand, paragraph 23 of the statement of agreed facts does, by its terms, deal with that situation. That statement confirms that the vehicle, whilst in the process of being utilised during ordinary working hours, would have the keys left in its ignition when the forklift was left unattended.

80 In any event, the factual issue is resolved, in my view, by the provisions of s191 of the Evidence Act 1995. The statement of agreed facts appears to be one falling within the provisions of that section. In those circumstances, I agree with the observations of Haylen J in Inspector William Hopkins v Michael Wherritt t/as MJ Wherritt Concrete Pumping Service [2002] NSWIRComm 16 at [54], that: ... the tendering of the statements and records of interview could not properly have taken place if they were to be used to contradict or call into question the agreed statement of facts.

81 I consider that Mr Harrison's evidence, for the reasons I have earlier given, does not relevantly contradict the statement of agreed facts as to the practice which had been adopted by the defendant in relation to forklifts used during ordinary working hours.

82 Another factual issue arose in the proceedings as to practices adopted at the Sandgate site with respect to the prohibition of unauthorised persons utilising the defendant's forklift. More specifically, the issue concerned whether truck drivers attending the defendant's site in the ordinary course of the defendant's operations used the forklift to load and unload their trucks.

83 The policy of the defendant stated that "no unlicensed person shall operate a forklift to carry out operational duties". Further, Mr Harrison stated that only he and one other employee (Christy Logan) were permitted to operate the forklift and that he had actively enforced the defendant's policy by "refusing permission to truck drivers who visited the Sandgate Depot to operate the forklift while unloading from their trucks".

84 The issue arose due to the inclusion in the statement of agreed facts of paragraphs 21 and 22. It is convenient to reiterate the relevant provisions at this point: 21. Harrison stated that he was not aware that Lyon was going to operate the said forklift. Lyon had not sought and was not given permission from Harrison to operate the forklift. Harrison stated that he expected the three men to be in the office and "[He] did not feel that there was any need to delegate authority … I expected them to be having a cup of coffee!"

22. However, Lyon stated that he had previously operated the said forklift truck at the defendant's premises "a couple of times over [the] years" when he had attended the said site. Harrison stated he was not aware that Lyon had operated the said forklift truck on prior occasions nor had he given permission for Lyon to operate the said forklift. Further, Harrison believed Lyon was aware of the policy that "[Lyon] was not to drive the forklift".

85 Mr Harrison, in his affidavit, stated he had "never previously witness[ed] Peter Lyon drive the forklift on the Sandgate Depot".

86 The defendant did have in place a policy whereby only qualified operators would operate its forklift. Whilst Mr Harrison did not state in his evidence that Mr Lyon had never used the forklift, he did state that he was not aware of any use by Mr Lyon and had actively enforced the defendant's policy in this regard.

87 Again, noting what was stated by the High Court in R v Olbrich, I find that Mr Lyons did, from time to time, use the forklift at the depot but did so without the knowledge of the defendant or Mr Harrison, its manager and supervisor of the works. I am not satisfied, to the requisite standard, that the evidence in this case would permit the Court to make a finding that the defendant did not take steps to enforce its policy on the unauthorised use of its forklift. 88 In this respect, I consider the prosecutor put the matter too highly in submitting that the "available evidence is consistent with a failure to provide and ensure that the defendant's policy was effectively promulgated and enforced at the subject depot". It would appear that the limit of the defendant's failures in this respect was to sufficiently enforce its policy so as to prevent the unauthorised use of the vehicle by Mr Lyons.

Relevant General Principles 89 I have recently set out the principles to be applied in relation to the sentencing of an offender under the Act in WorkCover Authority (NSW) (Inspector Lyons) v Warman International Pty Ltd (2000) 105 IR 236. I adopt those principles for the purposes of this judgment.

Consideration 90 In accordance with the principles for sentencing, I shall firstly consider the objective seriousness of the offence. In this matter, an employee of the defendant left the keys required for the operation of a forklift in the forklift's ignition whilst it was parked and unattended (in the sense of being outside the immediate control of the defendant's qualified employees or manager) at the defendant's premises. The risks to the health and safety of persons posed by leaving a forklift unattended in such an operable condition are manifest. The leaving of an industrial truck parked and unattended in a condition that allows an unqualified person to operate it posed a significant risk to the health and safety of employees and persons otherwise on an industrial premises. This is particularly so where, as in this matter, the vehicle was left in this state in anticipation of it being used for a loading operation.

91 That risk was not relevantly diminished by the fact that the forklift operated in that manner during the course of the business being wound up at the premises (although it may be thought that less persons may be at the workplace in those circumstances). Nor did the risk only arise because of the nature of the winding up operations. A similar risk to the health and safety of persons at the workplace had arisen, in my view, prior to the winding down of the business as a result of the practices adopted with respect to forklifts, namely, the keys of the forklift being left in the ignition where there was a prospect of the forklift being used during ordinary working hours (and not secured in a shed).

92 The defendant operated in an industry where the loading and unloading of vehicles was part of the day to day operations of the business. Despite the particular circumstances operating on the day of the incident, the fact remains that on that day there remained uncompleted activities of loading requiring the use of the forklift. Those activities may not have strictly corresponded to the ordinary business of the defendant, but the process involved (that is, the loading of a truck with a forklift) was not materially different. Given my finding that the practice at the defendant's workplace was for the keys to the forklift to be left in situ when the vehicle was left parked and unattended in preparation for use or in use and, given that on the day of the incident the forklift was still required to be used for the purposes of loading material onto a truck, I consider that the decision by Mr Harrison to leave the keys in the forklift generally conformed with practices which had previously been adopted at the depot.

93 This is not a matter, however, where the defendant failed to have introduced any systems to regulate the use and security of forklifts. I consider the following matters (which concern systems introduced by the defendant) should be taken as reducing the defendant's culpability: 1. The defendant did have in place a policy which, by reference to the Australian Standard, required the removal of the key from the ignition when parked and left unattended;

2. The defendant did have in place policies which provided for the prevention of use of its forklift by persons unqualified and unauthorised to do so; 3. Some steps were taken at the workplace to secure the forklifts. The defendant had a manager who was a qualified forklift operator and responsible for carrying out its policies. Further practice existed at the defendant's premises whereby the forklift was secured in a locked shed when it was anticipated that it would not be required for use (both during and after ordinary working hours). 94 The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of the offence: Berrima Coal at [135]; Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 326 at 342; WorkCover Authority of NSW (Inspector Riley) v Broken Hill Proprietary Company Limited (1998) 83 IR 427 at 429; and, Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 25. 95 However, it is clear that the defendant's systems were inadequate to control the use of forklifts so as to wholly prevent keys being left in the ignition of vehicles when unattended (and accessible out of a locked shed).

96 Firstly, whilst the defendant's policy did attempt to erect a system to secure the keys of the forklift when it was parked and unattended by reference to the Australian Standard, it failed to prohibit, specifically, any practice of leaving keys in the forklift when in use or anticipated for use and left unattended during ordinary working hours. This omission would be significantly less serious but for three considerations:

1. The defendant did consider it appropriate to specifically regulate the 'out of hours' security of forklifts. This would suggest that the defendant not only recognised the importance of securing forklifts and limiting access to the keys of such vehicles, but that that issue should be addressed by specific regulation in its policies. That approach was no less appropriate, in my view, to the regulation of the forklifts at other times (where, arguably, a greater prospect for misuse may arise during ordinary working hours). 2. There was a practice at the workplace of leaving the keys in the ignition of forklifts in certain circumstances during working hours which was not adequately controlled by the policy. In contrast, the specific aspects of the policy seemed to have secured adequate regulation. For example, it would appear that the policy of storing forklifts in a shed after hours was adhered to. 3. The defendant did point to training afforded to employees qualified to operate the forklift. It is true that during the course of that training operators were instructed to remove the keys from the ignition of the forklifts when the vehicles were left unattended. However, it is incumbent upon the defendant to reinforce such training by the effective promulgation of workplace procedures and the supervision of employees. Such supervision will serve to emphasise significant aspects of the training for workplace safety.

97 Secondly, and more significantly, there was a practice at the defendant's Sandgate depot that the forklift would, from time to time, be left unattended with the keys in situ when the forklift was in use (or anticipated for use). The existence of such a practice demonstrates a failure by the defendant to both enforce its policy and adequately supervise its operations (including the supervision of the activities of its Manager). 98 As to the need to enforce policies and supervise to ensure safe work practices, I note what was stated by the Full Bench in WorkCover Authority of New South Wales (Inspector Riley) v Australian Grader Hire Pty Ltd (2001) 103 IR 143 (at [16]): Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees.

In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer).

I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8). 99 I also adopt, in this respect, my decision in Berrima Coal at [140] as follows:

The Act compels an employer to ensure that those systems of work, which it has designed to ensure the safety of its employees, are complied with at all times. This requires not only the promulgation of rules and instructions establishing a safe system of work, but the provision of adequate supervision to ensure they are complied with.

100 The defendant's culpability is reduced in the light of the unusual operating and other conditions at the time of the incident (particularly in so far as those circumstances may have resulted in less supervision at the site and some departures from policy and ordinary practice such that unauthorised persons were allowed on to the site.) However, and as earlier mentioned, the culpability of the defendant is, in my view, not significantly reduced by these considerations as the essence of the risks to safety in relation to the operation of forklifts at the depot at the time of the incident was occasioned by the failures in the defendant's system of work in relation to such vehicles which had existed prior to the winding-up operations.

101 The prosecutor submitted that the leaving of the keys in an industrial truck, such as the forklift in these proceedings, whilst the vehicle was parked and unattended "gave rise to an easily identifiable risk of injury which, as in the circumstances of the present case, has resulted in significant injury to Mr Sabal". In that regard, the prosecutor relied upon the judgment of Hungerford J in James Moore v Vibro Pile. 102 In James Moore v Vibro Pile, the prosecution concerned an unauthorised person attempting to move a mobile crane which had been left unattended with keys in its ignition on the busy World Square Building construction site on Goulbourn Street in Sydney. 103 In dealing with the question of the foreseeability of the risk to safety in that matter, his Honour concluded as follows: I have concluded that the risk to safety on a building site in permitting a machine, as potentially dangerous as a crane, to be operated by other than the authorised person was reasonably foreseeable. True it is that a large and visible sign, stating "Authorised Operators Only", was in the cabin of the crane, but, it seems to me, obviously insufficient to prevent its wrongful use. It certainly was no protection against, as Mr. Harris stated, the instinctive action in moving the crane to enable him to use the blocked ramp. Even so, there is nothing in the circumstances which would suggest to me that the defendant's unsafe practice was the product of any wilful disregard for safety, but rather was only consistent with industry practice on building sites. That an accident thereby occurred in this instance, fortunately with no more extensive injuries to persons on the site other than those suffered by Mr. Harris, must be seen as compelling an urgent review of the industry practice. The penalty to be fixed in this case should, in my view, sufficiently reflect that need and act as a deterrent to others not presently minded to properly safeguard equipment against unauthorised use. 104 His Honour's observations are applicable in this matter. I accept the submission of the prosecutor that it was reasonably foreseeable that the leaving of keys required for the operation of an industrial truck, (such as the forklift) in the vehicle's ignition, whilst it was left parked and unattended during the course of or in association with the loading or unloading of trucks (prior to transport and freight of goods or equipment), may result in unauthorised persons using the vehicle with the likelihood of injury to persons, be they employees of the defendant or otherwise. In such circumstances, a truck driver or the person waiting for loading or unloading of materials before further transport may inappropriately attempt to expedite or complete loading or unloading operations by use of the forklift. That risk existed regardless of whether the defendant's business was being wound up at the time of the incident. Such a finding of foreseeability necessarily results in an increase in the seriousness of the offence: Capral Aluminium at [81] and Kembla Coal and Coke at 27. 105 As earlier mentioned, the risk to safety that gave rise to the prosecution was the failure to ensure that the key to an industrial truck was removed from the truck's ignition switch whilst the truck was parked and unattended. That risk was, in my view, an obvious one. It could have been avoided by relatively simple steps, namely, a more effective promulgation of a policy and an active enforcement and supervision of the defendant's policies (whether in the existing form or as amended to make more specific reference to the securing of forklift keys).

106 Whilst the gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: Lawrenson Diecasting Pty Ltd at 476; see also Capral Aluminium at [94]. The circumstances of this case, involving as they do a fatality, are tragically demonstrative of the risk to safety that may flow from the unqualified operation of a potentially dangerous truck or vehicle such as a forklift on industrial or other premises.

107 The defendant submitted that it was relevant to the assessment of an appropriate sentence in this case for the Court to take into account the fact that Mr Lyon, being the director of a sub-contractor, was prosecuted but that Mr Harrison, the defendant's senior manager, had not been. The defendant relied upon the judgments of his Honour Wright J, President, in Walco Hoist (at [31]) and myself in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 at 437, in submitting that the respective roles played by Mr Lyon, Mr Harrison and the defendant in the circumstances giving rise to the prosecution, were relevant when assessing the objective seriousness of the defendant's breach and the consequent level of culpability. It was submitted that the defendant was in the 'invidious position' of having put in place a well-trained senior employee to observe and enforce its policies, and that very employee had, without the knowledge or permission of the defendant, breached policy in a way that gave rise to the risk for which the defendant was being prosecuted. The penalty which would be imposed in these circumstances should be at the 'low end of the scale'.

108 The relevant passages from McDonalds, in this respect, are as follows (at 437): In my view, the court did not apply the principle of parity per se in Nesmat or Wong . The court did not assess the relative penalties appropriate to various offenders (regardless of the sections charged) but rather had regard to the nature of the detriment to safety occasioned and the contribution of the defendant to such detriment in assessing the objective seriousness of the offence committed by the defendant. In doing so the court had regard to the actual contribution of the defendant for the purposes of assessing penalty. Thus, in Wong the court had regard to the fact that the defendant was virtually wholly removed from the causal factors for the incident or the work actually performed by the window cleaner and even lacked knowledge of the performance of the work.

The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.

109 The approach of the Court in McDonalds was subsequently referred to with approval by the Full Bench in Capral Aluminium (at [62]). See also the judgment of Wright J, President, in Walco Hoist (at [31]).

110 In my view, Mr Harrison and Mr Lyons were less culpable in the circumstances of this matter than the defendant. 111 Mr Harrison should, no doubt, have secured the vehicle before be left the premises. That approach would have conformed with the general tenure of the policy of the defendant and arguably would have been a sensible measure for a senior employee of the defendant in the circumstances applying at the time of the incident. This is a factor to be taken into account in reducing the culpability of the defendant. 112 However, Mr Harrison's conduct arose in circumstances where the defendant had failed to adequately prevent a practice which had developed at the depot of leaving the keys of the forklift in its ignition, and where Mr Harrison's actions were not broadly out of conformity with that practice. Noting the limitations in the form of the defendant's policies earlier discussed, the defendant simply did not do enough to supervise and enforce its policies, including taking steps to ensure that its intended policy was carried out by its manager. The incident ultimately reflected that failure. 113 Mr Lyons acted in an unauthorised manner, but did so in a context where the premises (due to the conduct of the defendant and Mr Harrison) were relatively unregulated at the time of its use and where such risks to safety could have been simply avoided by an effective promulgation and enforcement of policies by the defendant. Again, the objective seriousness of this offence is reduced by this fact, but, in my view, the defendant's failure is, on balance, more serious when assessed against the failure of Mr Lyons.

114 In these circumstances, I regard the failure of the defendant as significant, although the seriousness of the offence is tempered by the factors I have so far alluded to in this judgment. The maximum penalty for the offence is $500,000.

115 The prosecutor has submitted that both general and specific deterrence "should be given significant weight in determining the objective seriousness of the subject offence". I approach the question of deterrence in this matter on the basis that "both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process": Capral Aluminium (at [74]), although recognising that there may be exceptional cases where matters of specific deterrence may not be relevant.

116 Further, I consider the statements of his Honour Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, approved by the Full bench in Capral Aluminium, warrant particular attention in this matter. His Honour in Fisher v Samaras Industries stated (at 388): The fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

117 The circumstances of this matter, and those as found by his Honour Hungerford J in James Moore v Vibro Pile, serve to adequately demonstrate the potential consequences that may arise from a failure to adequately safeguard or secure plant and equipment. Hungerford J in that judgment stated: The penalty to be fixed in this case should, in my view, sufficiently reflect that need and act as a deterrent to others not presently minded to properly safeguard equipment against unauthorised use.

118 In the result, I consider that general deterrence should significantly feature in the assessment of penalty.

119 I consider that there is merit in the submissions of the defendant that specific deterrence ought bear little weight in my determination of sentence. The evidence is clear that the defendant has shut down its Southern Network and no longer operates within New South Wales.

120 I will now review some particular subjective features of this matter.

121 The parties jointly submitted that the defendant should receive the "maximum discount" available for a plea of guilty (and other factors such as contribution and co-operation with authorities) pursuant to the principles espoused by the Court of Criminal Appeal in its guideline judgment in R v Thomson.

122 That judgment has been adopted and applied by Full Benches of this Court on several occasions: State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218; Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181; and, Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435.

123 Some further consideration of the guideline judgment may follow the judgment of the High Court of Australia in Wong v The Queen; Leung v The Queen (2001) 76 ALJR 79, but I consider that I am bound to follow Thomson in this matter having regard to the aforementioned Full Bench decisions of this Court.

124 I also note that the High Court of Australia has recently considered the rationale for the rule that a plea of guilty may be taken into account in mitigation of sentence. In Cameron v The Queen [2002] HCA 6 (Justices Gaudron, Gummow and Callinan JJ) it was stated (at [11] - [14]): It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen (1998) 194 CLR 656 at 663-664, it was said: "a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."

It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.

Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial ( Siganto v The Queen (1998) 194 CLR 656 at 663 [22] per Gleeson CJ, Gummow, Hayne and Callinan JJ. See also R v Gray [1977] VR 225 at 231). The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.

It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

125 Kirby J considered the foundation of the provision of a discount for a plea of guilty as follows ([65] - [66]): This Court has recognised that a plea of guilty is ordinarily a consideration to be taken into account in mitigation of punishment and reduction of the sentence that would otherwise have been imposed on a prisoner. By reference to established authority, it is possible to elaborate this principle so that it may be understood in context and more easily applied to varying circumstances: (1) In all States and Territories, and in respect of federal offences, legislation addresses in various ways the approach to be adopted, and procedures to be followed, where a person is to be sentenced who has pleaded guilty to a criminal charge. It is the first obligation of the sentencing judge to conform to such legislation. No rule of the common law, nor any judicial practice, may contradict valid legislative prescriptions. (2) To the extent that common law sentencing principles elaborate statutory provisions, they operate within a context that recognises the need for appellate courts to respect the discretion belonging to a sentencing judge. Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations. Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it in the course of performing the complex task of imposing criminal punishment. (3) The provision of a discount for a plea of guilty must not be, or appear to be, a judicial discouragement to an accused person against exercising rights to silence conferred by law or the right to put the prosecution to the proof of criminal accusations. An accused who insists upon such rights must not be penalised. An accused must not have the sentence increased to mark the sentencing judge's conclusion that the prisoner has wasted the court's time or the public's resources by insisting on a trial. Yet, necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty. Judges have acknowledged "a certain illogicality" in these distinctions. Nevertheless, such distinctions have been endorsed by this Court. Although they have been said to border on the "metaphysical", they reflect a difference between permissible and impermissible judicial approaches. They discourage inappropriate judicial involvement in plea bargaining that could dissuade a prisoner from exercising his or her legal rights. They alert judges to the susceptibility of prisoners generally (and some categories, such as Aboriginal prisoners, in particular) to pressure to induce them, even if innocent, to plead guilty. And they restrict excessive discounts for a plea of guilty that could indeed undermine the accusatorial feature of our criminal justice system. (4) The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate cooperation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.

(5) In some of the older judicial authorities, the chief or the only basis advanced for a discount for a plea of guilty was that it evidenced contrition, repentance and remorse on the part of the prisoner. The basis for affording a discount in a sentence on this footing was the oft stated belief that such a response indicated the intention of the prisoner to reform and not to re-offend. To that extent, remorse could vindicate one of the basic purposes of the system of criminal justice. Cases do exist where, upon apprehension, a prisoner expresses genuine and believable regret. However, judges have lately expressed doubt as to the extent to which pleas of guilty really proceed from such motives. In a prisoner who has been caught red-handed, the plea of guilty may indicate regret at being caught and charged, rather than regret for involvement in the crime. In the present case, Pidgeon J correctly observed that it was difficult for the appellant to be treated as truly remorseful when a considered decision had been made by him to bring such a large quantity of drugs into Western Australia. No doubt some suppliers of prohibited drugs view themselves (as suppliers of non-prohibited but regulated drugs and formerly prohibited goods and services now do) as simply serving a market that is rendered illegal by outmoded laws. At least in this context, much of judicial writing about remorse is somewhat unrealistic. The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner's resolve to avoid repetition of such conduct in the future and as an example to others. However, "remorse" is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight. The consideration of the public interest The main features of the public interest, relevant to the discount for a plea of guilty, are "purely utilitarian". They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds.

126 Justices Gaudron, Gummow and Callinan also considered the appropriate criteria and circumstances against which to assess the extent of any discount for a plea of guilty having regard to how early the plea was entered. Their Honours stated ([16] - [23]): So far as sentencing is concerned, the practice with respect to a "fast-track" plea has developed in Western Australia, consistently with the Sentencing Act 1995 (WA) ("the Sentencing Act "), in parallel with the statutorily sanctioned procedure whereby, on a plea of guilty to an indictable offence, a person may be committed to a superior court for sentence without the presentation of evidence or the filing of statements. The Sentencing Act , which sets out sentencing principles applicable to all persons convicted of an offence, specifies, in s (8) mitigating factors to be taken into account on sentence. One such factor is that the offender pleaded guilty. By s (8)(2) it is provided that "the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation." Provision is also made in s (7) with respect to aggravating factors. The fact that the offender pleaded not guilty is expressly excluded from those aggravating factors by s (2)(a) of the Sentencing Act . It was suggested for the respondent in this Court that the full reduction for a "fast-track" plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s 8(2) of the Sentencing Act were to be read in isolation from s 7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time. Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time. The question whether it was possible for a person to plead at an earlier time is not one that is answered simply by looking at the charge sheet. As was acknowledged in Atholwood by Ipp J, in the Court of Criminal Appeal of Western Australia, the question is when it would first have been reasonable for a plea to be entered. In Atholwood , the person concerned had been charged with several counts. After a process of negotiation, the prosecution withdrew a number of the charges and the offender pleaded guilty to one of the remaining charges. Ipp J said this: "It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt on other counts ... to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity." The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity. First reasonable opportunity Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

127 As to that question, Kirby J stated: The Court of Criminal Appeal ought to have applied the approach in Atholwood to the present appellant's application. Nothing in the applicable legislation providing for expedited hearings of cases where the defendant pleads guilty is inconsistent with that principle. Whilst the judicial practice of the "fast-track" system adopted in Western Australia would be better known to the judges of that State, because it lacks a statutory foundation I am unconvinced that it would warrant a different approach. The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.

128 I also note s22(1) of the Crimes (Sentencing Procedure) Act provides that in the sentencing process, a court may impose a lesser penalty than otherwise would have been the case if the defendant pleaded guilty but a relevant consideration is when such a plea was made. As earlier mentioned, in these proceedings the defendant initially sought to challenge the validity of the summons issued in this matter.

129 Having regard to the principles as stated in Cameron, and further having regard to the fact that the defendant entered a plea of guilty immediately after a judgment was delivered by a Full Bench of the Court bearing upon the issue of validity raised by the defendant (which was, in any event, abandoned at an early stage of these proceedings), I consider that the plea of guilty was entered at the first reasonable opportunity and substantial discount should accordingly be afforded the defendant.

130 There are other strong subjective factors of this matter. I have taken into account the defendant's expressed contrition and its efforts in having assisted the prosecutor in its investigations. The defendant has no prior convictions. Further, I consider, on the evidence of Mr Noyes and Mr Harrison, the defendant has otherwise operated as a good industrial citizen, cognizant of its obligations under the Act and that it had taken steps to ensure compliance with those obligations. In particular, I note the monitoring, hazard identification and auditing procedures earlier referred to.

131 In all these circumstances, I consider that the fine should be discounted by 25 per cent as a result of the subjective features of this matter.

132 I consider that the plea was properly entered. For the foregoing reasons, I consider, after the discount for subjective factors earlier identified, an appropriate penalty with regard to the offence as charged to be a fine of $70,000. The prosecutor should have a moiety of the fine. 133 I make the following orders:

1. The defendant is fined an amount of $70,000 with a moiety thereof to the prosecutor;

2. The defendant is to pay the prosecutor's costs in an amount as agreed between the parties or, failing agreement, as assessed. The parties are to file agreed short minutes setting out the appropriate order for the Court in relation to the quantum of costs in these proceedings within 14 days.

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