WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited

Industrial Relations Commission (NSW)|2005-05-18|Before: Staunton J

CITATION: WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited (No 2) [2007] NSWIRComm 181

PROSECUTION: WorkCover Authority of New South Wales (Inspector Simpson) PARTIES: DEFENDANT: Raynjune Pty Limited

CATCHWORDS: Occupational health and safety - determination of penalty and costs - general principles on sentencing - foreseeability - objective seriousness of the offence - general deterrence - held specific deterrence a relevant consideration - financial circumstances of defendant considered - subjective features taken into consideration - liability of defendant for prosecutor's costs to be discounted to reflect particular ultimately not pressed - penalty imposed - orders as to penalty, moiety and costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Procedure Act 1986 Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Cilli v Abbott (1981) 53 FLR 108 Environment Protection Authority v Barnes [2006] NSWCCA 246 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 Morrison v Powercoal Pty Limited [2003] 130 IR 364 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Way [2004] NSWCCA 131 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales v B H MacLachlan (NSW) Pty Limited [2004] NSWIRComm 331 WorkCover Authority of New South Wales v Haddon Rig Pty Limited [2005] NSWIRComm 284 WorkCover Authority of New South Wales v Malcolm McIntyre (t/as Corambie Pastoral Company) [2007] NSWIRComm 40 WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited [2007] NSWIRComm 46 WorkCover Authority of New South Wales (Inspector Yeung) v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158

PROSECUTION: Mr D Buchanan SC Mr D Jordan of counsel

SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr L King SC

SOLICITORS: Leitch Hasson & Dent

Matter No IRC 3335 of 2004 WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited (No 2)

Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000

1 In an earlier judgment concerning this defendant, handed down on 8 March 2007, I determined the offence charged pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act) had been proved: See WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited [2007] NSWIRComm 46. 2 This judgment is concerned with penalty and costs. 3 Raynjune Pty Limited (Raynjune) is the corporate entity through which Mr Noel McKay, his wife Dianne McKay and Mr McKay's parents operate their farming properties 'Glencoe' and 'Greenslopes'. The properties are located outside of Canowindra and Cowra respectively in New South Wales. The shareholders of Raynjune are the members of the McKay family. Mr Noel McKay is a director of Raynjune. 4 The offence arises out of an accident which occurred on 8 December 2003. On that day, while operating a combine harvester machine owned and operated by the defendant, Mr Rodney Langfield was required to enter the grain bin component of the machine in order to clean it out. When he did, the horizontal rotating augers on the floor of the grain bin were running. While Mr Langfield was in the grain bin, he slipped and his right foot came into contact with the rotating horizontal augers. 5 As a consequence of that accident, Mr Langfield suffered the traumatic amputation of his right foot and serious damage to his right lower leg necessitating a below knee amputation. 6 At the time he was operating the combine harvester, Mr Langfield was employed by Raynjune. 7 The factual matters relevant to the offence have already been set out in my principal judgment (PJ) referred to above. I do not propose to repeat them except where necessary.

8 On behalf of the prosecutor, an affidavit of Mr Peter James Punch was tendered without objection. Mr Punch is a partner the firm Carroll & O'Dea Lawyers and has carriage of the present matter for the prosecutor. Mr Punch's affidavit included:

(a) A copy of a Prohibition Notice issued to the defendant by WorkCover on 10 December 2003;

(b) Copies of correspondence between the defendant and the prosecutor in relation to the Prohibition Notice from 11 October 2006 to 16 November 2006;

(c) Documents relevant to the defendant's financial circumstances, they being the company's tax return for the financial year ending 30 June 2005 together with the Balance Sheet and Profit and Loss Statements for the financial year ending 30 June 2006 and for the period July 2006 to April 2007. 9 On behalf of the defendant, the following affidavit material was tendered without objection: (a) Affidavit of Mr Noel McKay. Mr McKay is a director of Raynjune. Mr McKay deposed as to matters relevant to the Prohibition Notice issued by WorkCover, the defendant company's financial circumstances and his current personal circumstances. Reference is also made to Mr Langfield's rehabilitation from his injury and present employment situation with the defendant.

(b) Affidavit of Mrs Dianne McKay. Mrs McKay is also a director of Raynjune. Mrs McKay is currently the wife of Mr Noel McKay but her affidavit as well as that of Mr McKay details the irretrievable breakdown of their relationship arising predominantly, it is said, from the enormous pressure these prosecution proceedings have created between them. Mr and Mrs McKay are now living apart. (c) Affidavit of Robert Royce Leitch. Mr Leitch is the solicitor with carriage of the matter on behalf of the defendant. Mr Leitch's affidavit refers to the correspondence exchanged on behalf of his client and the prosecutor's solicitors regarding the WorkCover Prohibition Notice and his role in relation to that issue. I will refer to it in more detail later in this judgment. 10 No oral evidence was received in the sentencing proceedings. General principles on sentencing

11 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing. 12 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: .... it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 13 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 where the Court said: In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' ... 14 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: ... 15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at [81]. 16 On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at [73]-[77]. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 19 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 20 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) endorsed the instinctive synthesis approach to sentencing and generally disavowed the sequential or two tiered approach. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added)

21 The offence found established was that on 8 December 2003 the defendant, being an employer did fail, contrary to s 8(1) of the Occupational Health and Safety Act 2000, to ensure the health, safety and welfare at work of all of it's employees and in particular Mr Rodney Langfield in that: The defendant failed to provide or maintain a system of work that was safe and without risk to health in relation to the undertaking of duties requiring the cleaning of the grain tank or bin which was attached to the machine. The defendant failed to provide and maintain systems of work that required that the power be isolated from the augers prior to employees such as Langfield entering the grain tank or bin. 22 As the defendant has no prior convictions, the maximum penalty that may be imposed is $550,000. 23 The combine harvester being operated by Mr Langfield on the day of his accident presented real and foreseeable risks to safety, particularly in relation to the operation of the augers in the grain bin. As I said in PJ: [53] Given the speed at which the metal flights on the augers rotate when operating, it is self evident that the partial or unguarded parts of the infeed and horizontal discharge augers represent real and foreseeable risks to safety in their operation. In other words, it is critical that steps are taken to ensure the safe operation of the machine so that individuals not come into contact with the augers when they are rotating.

[54] That is not a conclusion that is in dispute. It is clearly recognised by the manufacturers of the machine with appropriate warning decals on the machine at different locations. As well, the manufacturer's Operator's Manual emphasises such dangers on more than one occasion. For example, in the Operator's Manual in relation to the unloading operation, the following entry appears: WARNING: DO NOT enter the grain tank when the combine is running. The rotating augers in the bottom of the grain tank can cause severe injury including possible loss of limbs.

24 Given the above, it was a paramount consideration that whatever system of work was devised in order to clean the grain bin took account of that fact and ensured that no employee, and in this case Mr Langfield, was required to enter the grain bin to clean it unless and until the power to the augers in the grain bin was isolated. In short, it was necessary for the employer to devise a system of work to address that task, mindful of it's obligations under s 8(1) of the Act to 'ensure the health, safety and welfare at work' of Mr Langfield. 25 As the evidence disclosed, on the day of his accident Mr Langfield was required to enter the grain bin in order to clean it out. Mr Langfield was aware of the danger of the augers. The defendant's system of work for such an undertaking was a general instruction that he should turn the engine off before he entered the grain bin. As I summarised in PJ: [82] Accordingly, the defendant says, if Mr Langfield had followed that general rule of thumb, he would have been able to safely clean the bin in the manner he had been shown. In other words, the defendant submitted, its system of work for cleaning the grain bin consisted of observing the general dictum of turning off the engine before getting into the grain bin to clean it in the manner Mr Langfield had been shown.

[83] On first considerations, I accept such an approach may appear to address the issue as to what constitutes a system of work. That is, a general dictum to turn off the engine combined with the specific instructions as to how to clean the grain bin. But what is required is not just that a system of work exists but that it is a system that is adequate in ensuring a workplace free of risks to safety. That obligation requires more detailed consideration given the facts and circumstances relevant to the task being undertaken at the time of Mr Langfield's accident. 26 The problem with the defendant's asserted system of work, as explained above, was that it did not, in the work circumstances prevailing, adequately address the known and foreseeable risk to safety that the augers represented. 27 Turning off the engine was not, in the circumstances, the simplest and most straightforward way of ensuring the augers in the grain bin were not operating. As I said in PJ: [186] As the evidence established, there were a number of factors operating against ensuring Mr Langfield followed the procedure of turning off the engine before getting into the grain bin to clean it out of residue before moving to another paddock. These were: (a) a time imperative, not to wait for the engine to cool down; (b) a time and labour imperative - turning off the engine was a relatively complicated process; (c) that switching off the unloader drive was a more natural way of stopping the floor augers than was turning off the engine.

[187] Taking the above factors into account, the defendant's general direction that before entering the grain bin the engine be turned off was inadequate, in that it failed to take account of the likelihood that, when cleaning out the grain bin during field operations such as those being undertaken on 8 December 2003, an employee such as Mr Langfield would be minded to isolate the discharge augers by simply turning off the unloader drive switch. In order to address that propensity and to ensure the augers were isolated before he entered the bin, the system of work should have included an instruction that the unloader tube be returned to the saddle.

[188] Returning the unloader tube to it's saddle would have acted as a visible indicator, readily observable to the operator of the machine, that the discharge augers were isolated and would not operate. It is also an important adjunct to the instruction to turn off the engine in order to nullify the actions of an employee who, through inadvertence or haste, intended to turn off the unloader drive rather than the engine and failed to do so, as exemplified by Mr Langfield on the day of his accident. 28 There was, as I found, a very good reason why the defendant should have, and was readily able to, include in its system of work for cleaning the grain bin, a directive that the unloader tube should be returned to its bracket in addition to turning off the engine. As I found in PJ: [194] First, the procedure of sending the unloader arm back to its saddle was accomplished with the operation of only one switch. It did not have any delays or multiple step processes involved in it like shutting down the engine. Second, checking where the unloading tube was before entering the grain bin was a task achieved by a simple act of visibly checking. Contrary to Mr Collins' opinion, it did not require the performance of any mechanical task. It would, on any view, have been a relatively straightforward instruction to have incorporated into a system of work for cleaning the grain bin in order to ensure the augers would not operate and, at the same time, address any propensity for an employee, in the operational circumstances of Mr Langfield, to turn off the unloader drive rather than the engine. ..............

[196] Given all the above, I am satisfied there was a clear and easy system of work that could have been implemented in order to ensure workplace safety in relation to the task of cleaning the grain bin or any task requiring entry into the bin. That was a system that involved: (i) checking to see the unloading tube was in it's saddle; (ii) not entering the grain bin if it was in the extended position; and (iii) turning off the engine.

[197] The above system of work, if implemented, would have ensured the augers in the grain bin were isolated and would address the real possibility of an employee failing to turn off the engine in field operations and, for reasons of expediency, choosing instead to isolate the discharge augers in the manner exemplified by Mr Langfield on the day of his accident.

[198] Given the conclusions I have come to, I am of the view the defendant's system of work in relation to cleaning the grain bin, encompassing as it did an obligation to ensure the augers were not operating was, in all the circumstances, inadequate. 29 Further, as I determined: [217] ...the defendant had within it's administrative control, a simple, expedient and by any measure, a reasonably practicable step to take. It could have incorporated into it's system of work for cleaning the grain bin a direction that the unloader tube should be returned to the saddle in order to engage the relevant interlock switch that would be a visible checking mechanism to the operator that the augers in the grain bin were isolated before any attempt was made to climb in.

[218] Such a direction required no cost, time or trouble to the defendant. 30 On any view, as I found at [220] of PJ, the defendant's failure, encompassing as it did a failure to adequately risk assess the task of cleaning the grain bin by isolating the augers and then determining how to eliminate that risk by clear and comprehensive instructions, training and information, were matters the defendant was readily able to put in place. 31 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. The steps I have identified were readily and easily available to implement without any additional cost, time or trouble to the defendant. 32 In all the circumstances, I consider the offence to be objectively serious and will approach the determination of penalty on that basis. 33 In my view, general deterrence is a relevant consideration in relation to this offence. On behalf of the defendant, counsel contended there was no real need nor could it be 'seriously suggested the defendant needed to be substantially punished upon the grounds of general deterrence.' In support of that proposition, counsel pointed to the defendant's cooperation with the WorkCover Authority and contended that the defendant's property was not in a 'truly remote area'. 34 The latter submission was made, as I would perceive it, in response to the submission put by counsel for the prosecutor that there was a heightened need for general deterrence in relation to this offence aimed at rural employers particularly, he stated, where they involved unsafe systems of work around augers. In support of the latter contention, counsel pointed to the evidence of Professor Johnston, an expert witness in these proceedings. His evidence, inter alia, referred to the levels of injury in the agricultural sector caused by augers and, in particular, he said in his supplementary report of 24 November 2005 (exhibit 50) at para [8.2]: Augers are widely used in agriculture and they account for at least half of all agricultural injuries and deaths. The problem of improving auger safety while maintaining effective performance is a challenging one. 35 There have been a number of prior decisions of this Court where offences arising in the agricultural sector have been dealt with. See WorkCover Authority of New South Wales v B H MacLachlan (NSW) Pty Limited [2004] NSWIRComm 331: WorkCover Authority of New South Wales v Haddon Rig Pty Limited [2005] NSWIRComm 284 and WorkCover Authority of New South Wales v Malcolm McIntyre (t/as Corambie Pastoral Company) [2007] NSWIRComm 40. 36 Counsel for the prosecutor particularly highlighted the comment of Haylen J in WorkCover Authority of New South Wales v B H MacLachlan at [36] where his Honour stated: It is undoubtedly true that working in remote areas of the Australian outback presents different issues for systems of occupational health and safety to those which might be found in a city factory or workplace. By its very nature, the work is likely to be undertaken at a considerable distance from available emergency services and often the work will be undertaken alone, although systems for remaining in contact with a homestead or a fellow worker are able to be used. ... 37 A well recognised and acknowledged aspect of the agricultural industry is that it operates machinery such as the combine harvester under consideration in these proceedings. Combine harvesters, amongst other types of agricultural machinery, contain within them operational aspects such as augers that pose real risks to safety. It is important the agricultural sector, as a discrete and significant industry, has its attention drawn to its obligations to provide a safe system of work for its employees in the operation of such machinery, notwithstanding how remote a workplace may be or where it may be located. 38 As well, I see no validity in a submission that seeks to suggest there should be some distinction made going to the application of general deterrence when dealing with offences that occur in the city or outer urban areas as distinct from rural or remote locations. 39 While each case must be considered on its own facts and circumstances, there is nothing within the facts and circumstances of this offence that, in my view, would result in general deterrence being excluded from my penalty considerations. In short, the facts and circumstances of this matter are not such as to meet the 'exceptional circumstances' test as stated by the Full Bench in Capral at [74] already referred to. 40 There was also issue between the parties as to the application of specific deterrence in my considerations. 41 In the first instance, it is important to note that Capral at [77] is authority for the proposition that a sentencing court may disregard the element of specific deterrence if satisfied that the risk of offending is low or nonexistent. The Court may form such a view as a result of the rehabilitation of the offender or because the offender will not have the opportunity to reoffend. 42 Counsel for the prosecutor argued strongly that specific deterrence was a relevant factor in my considerations whereas counsel for the defendant contended, in all the circumstances, there was no call for specific deterrence to be given any weight in relation to this offence. The latter contention is not one with which I agree. 43 Counsel for the prosecutor submitted that, to date, the defendant had failed to accept responsibility for its offence and had taken no steps to rehabilitate itself. Given those circumstances, it was said, specific deterrence was a factor of some weight. 44 In my view, specific deterrence is a relevant consideration. However, I do not agree with the submission made by counsel for the prosecutor that the defendant has failed to acknowledge its system of work was defective and has declined to take the opportunity to remedy those defects, thereby indicating the defendant has not been rehabilitated in any way. I think, in all the circumstances, that is too harsh an assessment. 45 The evidence relied upon by the prosecutor in making that submission was based, in part, on the view expressed by Mr McKay in the substantive proceedings that, in his opinion, the corporate defendant had done all it could to provide a machine that was safe and, if there were any failures, they were failures that rested at the feet of the then co-defendants in this matter. 46 In my view, that view expressed by Mr McKay was directed predominantly to the unsafe plant particular, going quite specifically to allegations made by the prosecutor of the need for additional guarding over the augers in the grain bin and the installation of a cut off switch to the rear ladder of the combine harvester. That particular was ultimately not pressed against the defendant. 47 The primary issue relied upon by the prosecution to support its view that the corporate defendant had not been rehabilitated and, as an adjunct to that, had shown no remorse or contrition, were matters that arose in late 2006 in relation to the Prohibition Notice still in place regarding the defendant's combine harvester. 48 The Prohibition Notice was put in place by Inspector Simpson on 10 December 2003 and, as I understand, is still in place. 49 On 11 October 2006, the solicitors for the defendant wrote to the solicitors for the prosecutor requesting WorkCover consider lifting the Prohibition Order on the combine harvester because, it was said, the defendant had been unable to use the harvester for over three years and had been put to considerable expense having to hire an alternative combine harvester. 50 Following that correspondence, further correspondence was sent by the defendant's solicitor resulting in a letter sent by the prosecutor's solicitor on 16 November 2006 stating, inter alia: WorkCover is prepared to lift the Prohibition Notice subject to the production by Raynjune of a documented safe system of work in relation to the operation of the 2388 harvester. Additionally, WorkCover would require the production of documentary evidence that all persons who are proposed to operate the 2388 harvester have been trained and instructed in the aforesaid safe system of work. 51 Having sent that letter to the defendant's solicitors on 16 November 2006, nothing further was received on behalf of the defendant. 52 Counsel for the prosecutor pointed to the absence of any further information or contact from the defendant's solicitors as an indication that the defendant was not serious in its desire to want to put in place a system of work in relation to the combine harvester that would be acceptable to WorkCover. Such an attitude, it was said, evidenced a non-acceptance of responsibility for the defendant's failings, established in the offence found proved against it. 53 In rebutting such a conclusion, counsel for the defendant pointed to the content of two affidavits, filed without objection in these sentencing proceedings, explaining why there had been no contact from the defendant's solicitors on behalf of the defendant since the WorkCover Authority's letter of 16 November 2006 was received. 54 The first is the affidavit of Mr Robert Leitch, the solicitor for the defendant, in which he explains the basis for not contacting the prosecutor's solicitors prior to the sentencing hearing and the seven month period since contact was last made on behalf of the prosecutor in November 2006. Mr Leitch deposed: [3] I received a letter from Carroll & O'Dea dated 16 November 2006 setting out conditions upon which my client might be able 7to use his harvester and I spoke to Mr McKay and informed him of the contents of the letter. He unhesitatingly told me that he was willing to comply with the requirements but in any event it was his intention that only he, being very experienced in the operation of machinery and harvesters generally, would use the machine. He told me that he had never prepared a document of the kind required but that he was willing to do so by reference to the instruction manual and his general experience. I advised him that something more formal than he could expect to produce may be required and that I would prepare a draft for our joint consideration probably after consultation with an OHS expert. I had in mind getting the assistance of Mr John Collins who was familiar with the details of the accident.

[4] My discussions with Mr McKay took place in the latter part of November last year, and I was very busy at that time as I was right up to Christmas whereafter I took a break from practice for a holiday. I did not attend to the matter before the Christmas break and unfortunately overlooked it thereafter.

55 That Mr McKay on behalf of the defendant was willing to cooperate with the request from the WorkCover Authority that a documented safe system of work be in place in relation to the harvester is further supported by the affidavit of Mr McKay, filed in relation to these proceedings, in which he stated, inter alia:

[3] On or about 16 November 2006 I was advised by Mr Leitch that a letter had arrived from Carroll & O'Dea advising that the WorkCover Authority would lift the Prohibition Notice subject to Raynjune producing a documented safe system of work in relation to the operation of the 2388 Harvester and documentary evidence that all persons who propose to operate the 2388 Harvester had been trained and instructed in a safe system of work. [4] I gave Mr Leitch instructions that I would comply with the WorkCover Authority requirement and he informed me he would set about drafting a document probably taking advice himself from an OHS Consultant. I indicated to him I would be happy to have some input relying on the instruction manual I had read many times and the training I received from the distributor when the harvester was first purchased. I also indicated that to the extent that one can predict the future that only I would operate the harvester. [5] I have not received a draft document from Mr Leitch but I have in no way altered my attitude or instructions to him about compliance with the requirements of the WorkCover Authority. 56 Notwithstanding the explanations from Mr Leitch and Mr McKay, counsel for the prosecutor contended, outside of Mr Leitch's tardiness, they did not explain the absence of any steps that could have been taken by Mr McKay to press the WorkCover Authority directly in relation to the Prohibition Notice, by putting in place a documented system of work that was required in order to lift the Prohibition Notice. That absence of any actions by Mr McKay, it was said, pointed to a reluctance on Mr McKay's part, on behalf of the corporate defendant, to accept the need for any rehabilitation in relation to this matter and, in part, also pointed to the absence of remorse on the part of the defendant. Overall, it was said, those facts highlighted the need for specific deterrence in these proceedings. 57 Having regard to the facts relied upon, I do not agree with the assessment as painted by counsel for the prosecutor. That is, on behalf of the corporate defendant, Mr McKay had exhibited no desire to acknowledge his responsibilities and had taken no steps to rehabilitate the defendant's system of work in relation to the combine harvester. While it is well and good for counsel for the prosecutor to say it was always open to Mr McKay to have made independent contact if Mr Leitch was being tardy, I think that is inviting a response that would not, in my view, necessarily occur to somebody in the position of Mr McKay. 58 Further, I accept Mr McKay has experienced significant stress as a result of these prosecution proceedings. Further, the breakdown of his marriage during the period of time these proceedings have been on foot as well as his day to day responsibilities in the running of the corporate defendant would only have exacerbated that situation. Those factors would, on one view, easily explain his preoccupation with the travails of daily life, believing his legal matters were in the hands of Mr Leitch rather than seeking to take them on himself. In short, I do not attribute to Mr McKay the characteristics that are impressed upon me by counsel for the prosecution simply because of his failure to urge Mr Leitch on to do as Mr Leitch had undertaken to do as his solicitor. 59 Having said that, I nevertheless take the view that specific deterrence is a relevant consideration in these proceedings, not least of all because the corporate defendant continues to operate a combine harvester in going about its business and undoubtedly will continue to do so in the foreseeable future. 60 Counsel for the defendant has raised the defendant's financial circumstances as a factor relevant to my considerations in the ultimate determination on penalty. In doing so, he relies in part on financial material filed on behalf of the prosecutor. Reference to that is the affidavit of Mr Peter Punch, tendered without objection in these proceedings, annexing the diverse financial returns of the corporate defendant. It would seem the prosecutor's instructing solicitors came into possession of this material following a letter sent to the defendant's instructing solicitors on 27 April this year, requesting the defendant provide to the prosecutor's solicitors 'all material which will be relied upon in the sentence proceedings concerning the financial circumstances of Raynjune Pty Limited and/or Mr and Mrs McKay'. 61 The defendant's solicitors subsequently provided the material identified earlier in this judgment, annexed to Mr Punch's affidavit. 62 In his written submissions, counsel for the prosecutor stated that the financial material supplied would appear to show the defendant's total equity as at 30 April 2007 is $760,136. Accordingly, he said, the material does not suggest the defendant is impecunious and unable to pay a fine. Further, if it could demonstrate a case, the defendant could always apply to the Registrar for an extension of time to pay its fine, including any costs order. 63 In relation to submissions received on behalf of the prosecutor to the above effect, Mr Noel McKay, in his affidavit, responded as follows: [6] I have received several requests from my solicitor, Mr Leitch, for the furnishing of tax returns for Raynjune Pty Ltd for consideration by the Industrial Court when considering penalty and costs in relation to the prosecution of Raynjune Pty Ltd. I have been under tremendous mental and financial stress since the injury was suffered by Rodney Langfield on 8 December 2003.

[7] I have been advised by my solicitor, Mr Leitch and verily believe that the Prosecutor's Submissions on Sentence amongst other matters refers to Raynjune Pty Ltd's ability to pay a fine under Points 70 and 71. I am further advised that as the balance sheet shows a total equity as at 30 April 2007 in Raynjune Pty Ltd of $760,136.00 that it is stated that this figure "does not suggest that the Defendant is impecunious and unable to pay a fine". I would like to point out that the figure of $760,136.00 is not a sum of money that is available as cash, and I would like to point out to the Court that the balance sheet as of 30 April 2007, under Assets lists the following: (i) Loans - $413,255.35 I have been operating the farm for twenty years and the loans listed were to purchase further land to make the farm more productive and to pay out my mother and father from whom my wife and myself are purchasing the farm. The breakdown of our marriage to which I refer in more detail below is likely to change the ownership arrangements of the farm through the Defendant Company, but that difficulty has not yet been addressed. (ii) Fixed Assets - $158,043.58 This figure related to fixed assets such as equipment which is required to operate the farm. (iii) Cash Assets - $145,196.00 The farm is principally a grain farm and following harvest in November/December each year, funds are received from the sale of grain. The low season in a grain farm is in September/October when the majority of cash received is paid out on various debts. I am presently paying out many debts and will continue to do so for the rest of this calendar year and accordingly the cash assets that are referred to on the balance sheet are required to continue the operation of the farm. [8] Accordingly, Raynjune Pty Ltd, as suggested by the Prosecution, is not able to pay a substantial fine. 64 Mr McKay was not required to be available for cross examination in relation to his statements concerning the financial position of the defendant. For that reason, it is a little difficult to come to a definitive view as to the complete financial position of the defendant. 65 While there is an affidavit filed on behalf of Mrs McKay, it is largely directed to identifying the breakdown of the relationship between she and Mr McKay. Mrs McKay deposed that, since January 2005, she and Mr McKay have not lived together and she is currently living in rented accommodation in Orange with the children of the marriage. The only information about Mrs Diane McKay's financial circumstances is that she has returned to casual teaching since mid 2005 and has recently secured a short term contract in teaching. 66 In the first instance, s 6 of the Fines Act (1996) provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 67 The meaning of 'fine' for the purposes of the Fines Act is any monetary penalty imposed by the Court as well as any costs payable by the defendant. 68 As part of the defendant's financial circumstances, the question of costs in these proceedings has been a matter of considerable concern to me. That is a matter I will consider in more detail later in this judgment. 69 Putting the issue of costs to one side, I do not believe the defendant is impecunious, as that word is understood, but I do accept it is a small family company of relatively modest means whose major asset is the land owned and farmed by the defendant over many years in order to secure the family income and who does not have access to immediate or significant cash resources. Further, I accept, as deposed to by Mr McKay, that the breakdown of his marriage is likely to change the ownership arrangements of the defendant. It would not be unduly speculative to say that any change to such arrangements may well impact adversely on the defendant's financial bottom line. 70 Ultimately, the appropriate approach, in all the circumstances, is as enunciated by Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 71 The extent to which the defendant's contrition or otherwise should be taken into account as a mitigating feature is one I have already, in part, commented upon. On behalf of the defendant, counsel has highlighted all that has been done to assist Mr Langfield following his accident, including that he is still employed by the defendant company. He also highlighted the personal distress occasioned to Mr McKay and his wife as a result of this incident. 72 That fact is not disputed by the prosecution but counsel points to it as being a factor personal to Mr McKay as distinct from the defendant company. I have to say, in all the circumstances, that is a somewhat artificial distinction to make given the corporate defendant is a small family company and Mr McKay is, for all practical purposes, the alter ego of the corporate defendant. As such, I believe the distress he feels can be properly imputed to the defendant. 73 Further, I am satisfied the corporate defendant, via the actions of Mr McKay, has demonstrated significant regret and remorse for what has occurred to Mr Langfield. In saying that, I do believe Mr McKay, and thereby the corporate defendant, did believe a significant degree of responsibility for the offence as originally charged lay with the co-defendants, particularly with reference to the unsafe plant particular. 74 Nevertheless, once that particular was not pressed and the unsafe system of work particular stood alone vis-a-vis Raynjune, the responsibility for that rested squarely with Raynjune. I do believe Mr McKay, on behalf of the corporate defendant, has acknowledged that by indicating his willingness to set out a documented system of work that would satisfy the WorkCover Authority in relation to any future operation of the defendant's combine harvester. 75 That brings me to the issue of costs. In addition to the penalty imposed, the defendant will be left with a significant cost burden. On that issue, it is acknowledged by the prosecution that, in determining penalty, the Court is entitled to take account of the defendant's obligation to pay the prosecutor's costs: See Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]. 76 Tendered in these proceedings without objection was a letter sent by the solicitors for the prosecution to the defendant's solicitors dated 10 July 2007 which relevantly states as follows: We refer to your letter of 22 June 2007 to which you attached financial documentation pertaining to your client Raynjune Pty Ltd.

The purpose of this letter is to indicate that in the event that your client is convicted, when the proceedings are next before the Court on 11 July 2007, the prosecution will seek costs against your client in the sum of $167,895.

WorkCover has considered the circumstances in which this prosecution has progressed, including that an offer was made to discontinue the proceedings against your client at the same time that the proceedings against CNH (Australia) Ltd and Davibray Pty Ltd were discontinued. Your client declined that offer.

We are instructed that WorkCover wishes to be as fair as possible to your client. It is also noted that your client, at the conclusion of the prosecution case, applied to have the proceedings dismissed on the basis that there was no case made out by the prosecution. As you are aware, the Court declined your submission and permitted the proceedings to continue.

The total prosecutor's costs estimate in this matter is $239,850 plus GST - this estimate of costs is entirely referable to the prosecution against Raynjune Pty Ltd.

In all the circumstances of the case, WorkCover has instructed us that it is prepared to agree to discounting the costs claimable from your client if convicted by a factor of 30%. WorkCover intends, in such event, to claim costs in the reduced sum of $167,895. 77 At the time this matter was before me on 12 July 2007, the defendant had not replied to the above costs proposal put by the prosecutor. 78 My concern as to costs in these proceedings is best explained by reference to my primary judgment and, in particular, the following extract: [19] When these proceedings first commenced before me, there were three defendants. All were facing charges arising from the accident to Mr Langfield on 8 December 2003. In addition to Raynjune, the other defendants were CNH Australia Pty Limited (formerly Case Corporation Pty Limited) and Davibray Pty Limited as Trustee for B & S Carruthers Trust trading as Carruthers Machinery Co. As earlier indicated, both of those parties had a role to play in the ultimate supply of the combine harvester to Raynjune. CNH imported and on-sold the machine in or about November 1999. Davibray accepted the machine as a trade-in on a sale in or about November 2001 and, later in November 2001, sold the machine to Raynjune.

[20] CNH and Davibray were both charged with 'supply' offences under the relevant sections of the Occupational Health and Safety Act then prevailing. In relation to CNH, it was charged with an offence arising under s 18(1) of the Occupational Health and Safety Act 1983 whereas Davibray's alleged offence, in identical terms, arose under the counterpart provisions in s 11(1) of the Occupational Health and Safety Act 2000.

[21] In relation to all three defendants, the prosecutor alleged each of the defendants had breached the respective Act with a specific failure particularised going to unsafe aspects in the operation of the machine, in particular that of access to the unguarded augers in the grain bin. In relation to CNH and Davibray, this was particularised as follows: Access was possible to the grain tank or bin of the machine whilst the augers were in operation. The augers were not guarded and were easily accessible enabling a person to become entangled or caught in the auger if the person entered the grain tank or bin. The use of the machine in accordance with the operator's manual was inadequate to protect the user of the machine.

[22] In relation to Raynjune, the offence charged particularised two failures. The one dealing with the alleged unsafe operation of the machine was particularised slightly differently to that with respect to CNH and Davibray but with similar effect as follows: Further, the defendant failed to ensure that plant, to wit one (1) CASE IH2388 Axial Flow Combine Harvester which was provided for use by employees (namely Langfield), at work was safe and without risk to health when properly used. The machine was not safe in that access was possible to dangerous moving parts of the machine whilst the machine was in operation or powered. The augers were not guarded so as to prevent employees such as Langfield coming into contact with them whilst they were in operation.

[23] For the purposes of this aspect of the judgment, I will refer to the above particularised failure with respect to each of the three defendants as the unsafe plant particular.

[24] In addition to the unsafe plant particular above, Raynjune's offence was further particularised with respect to an alleged unsafe system of work. I will come to that in due course.

[25] Because of the issues raised by the prosecution surrounding the unsafe plant particular, a considerable amount of court time was taken up particularly involving expert witness evidence. By the time the prosecution closed it's case on 7 July 2006, the hearing involving all three defendants had occupied some 22 days of court time (including a site inspection of the combine harvester in question). The majority of that time was devoted to evidence relating to the alleged unsafe plant as particularised.

[26] In July 2006, all three matters were set down for further hearing for a period of six weeks extending from December 2006 into March 2007. Again, the bulk of that time was anticipated to be expert witness evidence to be called by the defendants, particularly CNH, in relation to the alleged unsafe plant particular. ................

[28] On 14 November 2006, counsel for the prosecutor sought leave to withdraw the charges against CNH and Davibray with no order as to costs. That application was not opposed by counsel for CNH and Davibray and, the Court being satisfied as to the implied power to grant such leave, did so. The prosecutor then formally withdrew the charges.

[30] Following the above proceedings, a similar application for leave to withdraw with respect to Raynjune was made on 22 November last. That application was made on the basis that any leave to withdraw must be unconditional with no order as to costs.

[31] Counsel for Raynjune agreed as to the Court's implied power to grant leave to the prosecutor to withdraw but opposed unconditional leave being granted. If leave to withdraw was to be granted, counsel for Raynjune submitted that it should be on condition that the prosecutor pay Raynjune's costs thrown away to date. Such an application was opposed by the prosecutor.

[32] After hearing brief submissions from both parties and in an ex tempore decision, I refused the prosecutor's application for unconditional leave to withdraw. Accordingly, the proceedings with respect to Raynjune were listed to continue.

[33] In pressing ahead with the charge with respect to Raynjune, the prosecutor no longer relied on the particular of unsafe plant but proceeded only with respect to the particular as to an alleged unsafe system of work. 79 As is evident from my comments in para [25] above, by the time the defendant elected to proceed against the defendant with respect to the allegation going only to its unsafe system of work, a considerable period of court time had already been taken up. Further, there is no dispute on the part of the prosecution that the majority of Court time, up to the time the prosecution closed its case on 7 July 2006, had been devoted to evidence and, in particular, expert evidence, relating to the alleged unsafe plant as particularised, which was subsequently not pressed against the defendant. 80 The prosecution is entitled to its costs in relation to those proceedings that were discreet and directly applicable to the defendant - they being the application for a no prima facie case that was heard and determined by me on 7 July 2006 as well as the substantive hearing before me in relation to the offence that was ultimately pressed. At issue, in my view, is the prosecutor's costs for the twenty two days of hearing up to the date on which the prosecutor closed its case. 81 While the letter sent by the prosecutor's solicitors of 10 July states their willingness to accept $167,895 as a discounted cost estimate and that the estimate is entirely referable to the prosecution case against the defendant, what is not clear is the extent to which the prosecutor's estimate refers to the prosecutor's costs against the defendant up to the time the prosecution closed its case on 7 July 2006. 82 As reference to the extract from PJ above makes clear, up to the time the prosecution closed its case on 7 July 2006, the hearing, then involving three defendants, had occupied some 22 days of court time (including a site inspection of the combine harvester in question). A substantial part of that time was devoted to evidence, particularly expert evidence, relating to the alleged unsafe plant as then particularised. Further, a considerable degree of that evidence was directed to the other then co-defendants in relation to the unsafe plant particular. 83 The prosecutor does not expect, quite rightly, that the defendant should have to pay any costs incurred by the prosecutor in prosecuting the former co-defendants. 84 Any consideration as to costs in criminal proceedings must start by reference to Latoudis v Casey (1990) 170 CLR 534. In that decision the High Court affirmed a defendant's right to seek costs in criminal proceedings. As Mason CJ said at 542: In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. 85 That general proposition is underpinned by the following principles found in Latoudis: (i) the discretion is broad and unconfined.

(ii) the purpose of costs is not to punish the unsuccessful party but to compensate the successful party: see also on this point Cilli v Abbott (1981) 53 FLR 108 at 111.

(iii) the discretion must be exercised for reasons directly connected with the charge or the conduct of the proceedings. 86 It seems to me, any claim made by the prosecutor for costs incurred with respect to the defendant up to the close of its case on 7 July 2006 should be significantly discounted to take account of the unsafe plant particular that was ultimately not pressed with respect to the defendant and to ensure the defendant is not unduly penalised by being made liable for costs that were costs incurred by the prosecutor with respect to the other co-defendants. 87 In his submission as to costs, counsel for the defendant referred to the decision of the Full Bench of the Court in WorkCover Authority of New South Wales (Inspector Yeung) v Donald Edwin Wilson t/as Wilson's Tree Service [2005] NSWIRComm 158. That decision dealt with an appeal from the decision of Boland J at first instance on the basis, inter alia, that his Honour had erred in awarding the prosecutor only twenty per cent of his costs at first instance rather than the usual order that costs follow the event. 88 In determining the appeal, the Full Bench declined to overturn his Honour's decision as to costs. In so determining, the Court said: [132] Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable".

[133] His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act . The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]: The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable.

[134] In this matter, his Honour's reasoning reveals he was aware of the unusual order he made and also the discretion the court held as to cost orders when he determined there were such exceptional circumstances. ... 89 In his decision at first instance, Boland J concluded, on the evidence before him, the defendant was in straightened financial circumstances. As he said: [47] Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. The defendant provided extensive evidence as to the state of his means. I am satisfied, having regard to that evidence that the defendant is, as he puts it, "relatively impecunious". The evidence was that the defendant's outstanding debts exceed his outstanding assets and that in his belief any significant penalty will give rise to a need to sell the family home. I propose to reduce the fine that otherwise would have been ordered to be paid by the defendant given the defendant's limited means and impecuniosity. ................

[53] Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. 90 In these proceedings, I am not faced with a defendant that is 'relatively impecunious' as determined by Boland J in WorkCover Authority of New South Wales (Inspector Yeung) v Donald Edwin Wilson t/as Wilson's Tree Service. Nevertheless, in my view, the defendant is of modest financial means and, even allowing for the order I propose to make, will be required to meet a considerable costs order. 91 It seems to me that part of the difficulty in determining what is a fair and reasonable costs order in this matter is the difficulty of unscrambling the evidentiary egg, so to speak, in relation to the 22 days of hearing time up to the close of the prosecution case on 7 July 2006. In other words, how much of that hearing time can be said to be directly attributable to the ultimate offence pressed against the defendant in relation to its alleged unsafe system of work ultimately found to be proved? From my assessment, it would be significantly less than that taken up by evidence relating to the unsafe plant particular, let alone that part of the proceedings that could be said to be specifically related to the other then co-defendants as distinct from the defendant. 92 In the exercise of my discretion, taking account of all of the above considerations and doing the best I can, I believe the defendant should be liable for the prosecutor's costs as follows: (i) for costs up to the close of the prosecution case on 7 July 2006, the defendant should pay twenty five per cent of the prosecutor's costs on an agreed or assessed basis; (ii) for costs referable to the defendant's prima facie case submission and the hearing of the offence pressed against the defendant, the defendant should pay the prosecutor's costs as agreed or assessed. 93 As confirmed by counsel for the prosecutor, the question of costs has to be determined by the provisions of s 253 of the Criminal Procedure Act 1986 which, although repealed, is applicable to these proceedings. That is a matter I had cause to consider at some length in my judgment in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 and, in relation to s 253 specifically, as follows: [306] In considering the provisions of s 253, it is clear the discretionary power to award costs allows a court to order an accused person to pay the prosecutor's costs (s 253 (1)) or to order the prosecutor to pay the accused person's costs (s 253 (1A)). In each case, the amount of costs must be specified and must be made concurrent with the requisite conviction or orders as the respective sub-sections provide.

[307] In making provision for costs as the Court specifies, s 253(2) provides a mechanism by which costs are to be determined - by agreement and in the absence of agreement, in accordance with the rules.

[308] I emphasise it is not my intention in this judgment to make orders for the payment of costs in any specified amount. Before any sum can be specified, it must either be agreed between the prosecutor and the defendants or assessed and quantified.

[387] I have already concluded that in making an order for costs, I must do so in accordance with the provisions of s253 of the CPA. The costs to be paid must be such costs as the Court specifies and the costs specified must be made 'in and by a conviction or order'. In order to effect that provision it is necessary for the prosecutor's costs to be assessed. Having determined the basis of my costs order, I would direct the parties to confer with a view to reaching agreement pursuant to the provisions of s253(2)(a) of the CPA. 94 In the absence of agreement, it is apparent, before final orders as to conviction and costs can be entered, costs will require to be assessed. In accordance with the Rules of the Court, it would be my intention, failing agreement, to refer the matter to the Registrar of the Court for assessment. 95 Taking into account all I have referred to and, in particular, the issue of costs, I impose a penalty in this matter of $40,000. 96 In summary, I make the following orders: (1) The defendant is guilty of the offence charged; (2) I impose a penalty of $40,000; (3) I allocate a moiety on penalty to the prosecutor on the usual terms; (4) The defendant is to pay the prosecutor's costs on an agreed or assessed basis as follows: (i) for costs up to the time of the closure of the prosecution case on 7 July 2006, the defendant is to pay twenty five per cent of the prosecutor's costs; (ii) the defendant is wholly liable for costs incurred by the prosecutor covering the defendant's no case to answer submissions as well as the substantive hearing of the defended charge. (4) If agreement cannot be reached by the parties on the above basis, the matter may be referred to the Registrar of the Court for assessment. (5) If agreement is reached on the basis of the above, the parties are to prepare draft orders to reflect the decisions I have made in order to record convictions and specific costs in favour of the prosecutor.

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At a glance

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Before

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Judgment (58 paragraphs)

Parties

Cases Cited (17)