WorkCover Authority of New South Wales (Inspector Constable) v S P & H M Pope Logging Pty Limited

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

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 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 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60

PROSECUTION: Mr D O'Neil of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr M Shume of counsel SOLICITORS: Timber Trade Industrial Association

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 2/12/2005

Matter No IRC 2912 of 2005 WorkCover Authority of New South Wales (Inspector Constable) v S P & H M Pope Logging Pty Limited (ACN 002 414 048) Prosecution arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 445 1 The defendant has entered a plea of guilty to an offence arising under s8(1) of the Occupational Health and Safety Act 2000. 2 The offence charged states that the defendant, being an employer, failed to ensure the health, safety and welfare at work of all it's employees, in particular William Langenhorst in that it failed: [1] to adequately provide and maintain systems of work that were safe and without risk to health in relation to servicing a mechanical timber harvester commonly known as a feller buncher in that: [1.1] the defendant failed to provide a documented safe work method statement for the following tasks: [1.1.1] checking for oil leaks in the mechanics of the Feller Buncher; [1.1.2] performing testing work on the head of the Feller Buncher; [1.1.3] tagging out and isolating the engine and hydraulics of the Feller Buncher; [1.2] the defendant's systems of work incorporated a discretion on the part of Mr Langenhorst to adopt procedures that he considered safe; [1.3] the defendant failed to ensure that Mr Langenhorst did not perform the dual tasks of checking for oil leaks and performing testing work on the head of the Feller Buncher by performing these tasks simultaneously with the engine running and hydraulics engaged and without maintaining an adequate exclusion zone around the head of the Feller Buncher; [1.4] the defendant failed to provide adequate instruction and training to Mr Langenhorst in relation to adhering to isolation procedures to prevent work being performed on the head of the Feller Buncher while the engine was running and with hydraulics engaged; 3 The prosecutor tendered an agreed statement of facts including reference to matters relevant to the defendant company, the operations manual for the machine in question as well as relevant extracts to the defendant's system of work at the time of the offence incident and records of interview by Inspector Constable with Mr Langenhorst and the director of the defendant, Mr Stephen Pope. Overall, it was a most comprehensive document and the parties are to be commended for it. That detailed statement disclosed as follows: [1] The prosecutor has conducted investigations into the circumstances surrounding an incident which occurred on 14 June 2003 at Compartment 146, Nadgee State Forest, No 125 Nadgee Road, south of Eden, in the State of New South Wales (premises), in which William Langenhorst (Langenhorst) sustained serious injuries. [2] At all material times, the defendant: [2.1] was an incorporated entity with its registered office located at Shop 5 & 6, 89 Auckland Street, Bega, in the State of New South Wales; [2.2] was engaged in the business of hardwood thinning at the premises; [2.3] employed William Langenhorst as a qualified plant mechanic at the premises; [2.4] owned and operated a mechanical timber harvester commonly known as a 'Feller Buncher' (Feller Buncher). Incident [3] At approximately 2.45pm on 14 June 2003 (incident date), Langenhorst, in the ordinary course of his duties, was replacing the wiring loom between the operator's cabin and the head of the Feller Buncher. [4] A Feller Buncher is a timber harvester with a head that contains grab attachments for grabbing and holding trees. The head also contains a chain saw that pivots out of the head to cut trees or logs.

[5] Langenhorst had manoeuvred the Feller Buncher into a position where he could work on the head. The head was on the ground and rotated approximately 180 degrees so that the junction box was at the top right hand side. [6] Langenhorst removed the covers of the head to access the wiring loom in the junction box. He did not have the engine running or hydraulics engaged. [7] Langenhorst removed the wiring loom, made up a conduit for the wire and replaced the wire between the operator's cabin and the head. [8] Langenhorst returned to the operator's cabin and started the machine. He was testing his work by taking the Feller Buncher through its range of movements and operations. Langenhorst discovered that the chain saw function was not working, which he suspected was due to electrical failure or an oil leak. In fact the chain saw was jammed, having jumped its rails. [9] Langenhorst left the operator's cabin leaving the engine running and the hydraulics engaged. He collected a multimeter and screwdriver and went to the junction box. The multimeter was to be used to check the wiring he had worked on to ensure that power was getting through. [10] Langenhorst had loosened screws connecting wires in the head when he dropped his screwdriver. It is likely that Langenhorst was standing to the left side of the machine, outside the reach of the grabs. As he bent over to pick up the screwdriver, he realised that the grabbers had commenced to function and that his right leg had been drawn into the machine. The grabs of the Feller Buncher closed in on Langenhorst crushing his leg and groin. [11] Langenhorst required emergency amputation of his right leg and a colostomy due to damage to his bowel. [12] Langenhorst was assisted by the only other person present in the immediate vicinity at the scene of the incident, being John Turbet (Turbet), Area Operations Manager for the Forestry Commission of New South Wales. Investigation [13] On 16 June 2003 the Prosecutor attended Eden police station at 1:04pm. In the company of Sergeant Blanch and Senior Constable Geoff Bills, the Prosecutor travelled south of Eden along the Princes Highway to the Nadgee Road. They then drove approximately 14.7 km East along Nadgee Road. [14] At this point, the Nadgee Road traversed the top of a ridge and was blocked by orange plastic webbing and signs indicating that logging operations were ahead. There the Prosecutor met Neal Uback (Bush Boss and Feller Buncher operator) and proceeded onto the logging area. [15] The section of the Nadgee Road where logging operations were being undertaken formed a saddle in the ridge. At the bottom of the saddle were two dark green timber harvesters. The harvesters were parked on the left side of the road. The eastern harvester had its arm extended and resting on the ground parallel to the road. The western harvester had its arm extended and resting on the ground across the road. [16] The position of each of these harvesters and its arm was marked on the ground by orange paint. [17] The western harvester was identified by Sgt Blanch as being involved in the accident to William Langenhorst on 14 June 2003. The timber harvester is commonly known as a 'Feller Buncher'. [18] The Feller Buncher consisted of two hydraulically driven caterpillar tracks on which it was propelled. Between the tracks was the main body of the machine which included the diesel engine and drive train. Mounted on top of this was the operators cabin and a black hydraulic arm. The cabin and arm rotated in a horizontal plain above the main body through 360°. [19] The hydraulic arm was black in colour and painted on the arm in yellow were the words 'KEEP CLEAR' and 'DANGER'. Mid way along the arm hung an electrical wire. [20] Attached to the end of the hydraulic arm was a processing head. This consisted of two hydraulically operated grabs or claws and a hydraulic chainsaw. This head could be rotated through vertical and horizontal plans. [21] The processing head was resting on the ground. Two hinged cover plates were open which revealed inner workings such as electrical wiring and hydraulics. At the upper most point of the processing head an electrical junction box was open and wires were exposed. One red and one black wire were not connected.

[22] Inside the operators cabin was an open electrical junction box. On the dashboard or control panel was a tag 'Danger Do not operate'. The controls in the cabin consisted of two joysticks connected to the arms of the operators seat. Each joystick had a number of buttons. Hanging on the right joystick were blue ear muffs. On the floor were two metal foot pedals. [23] Fixed to the roof of the operators cabin was a two way radio. On the wall next to the radio were stickers of warnings and operating instructions for the Feller Buncher. [24] Across the doorway of the cabin was a yellow plastic rod. This plastic rod was connected to the hydraulic insolating switch. When moved up to allow access or egress from the cabin all hydraulic controls were isolated. [25] Following the inspection of the Feller Buncher, the Prosecutor requested that Ian Low, a qualified mechanic, complete wiring work on the processing head and in the cabin of the Feller Buncher. Neal Uback then started and demonstrated the movement of the processing head by opening and closing the log grabs or claws. At this point it was discovered that the chain saw would not operate. [26] The engine of Feller Buncher was then stopped after the arm was resting on the ground as before. Inspection of the chain saw found that the chain had jammed in the sprocket nose. After freeing the jammed chain and adjusting the chain tension the Feller Buncher was then demonstrated a second time showing the log grabs or claws opening and closing and the chain saw rotating and the bar moving out as if to cut a tree. [27] On 24 June 2003, in the company of regional inspector Kevin Maker, the Prosecutor attended Nadgee State Forest, where along with Erica Hanson of Eden Forest Management Services, the Prosecution observed Neal Uback demonstrate the Feller Buncher while he felled and stacked two trees. Then using the Feller Bucher he showed the full movement of the arm and processing head. [28] The Feller Buncher moved on two caterpillar tracks. The arm and cabin rotated through 360% in the horizontal plane and could be levelled independent of the twin tracks. [29] The arm could be raised and lowered at a pivotal point next to the cab and was able to bend like an inverted elbow at a point approximately one third along its length. [30] The processing head rotated on the end of the arm 360° through the vertical plane. It also tilted through a second vertical plane. The grabs or claws could be opened and closed to grasp the base of a tree and hold it while the chainsaw cut it off at the base. It was then able to lift the tree and stack it to one side. Other matters [31] The Defendant was a small family owned company managed by director Stephen Pope employing approximately nine employees. [32] Langenhorst was employed by the Defendant approximately three years prior to the incident and had over 20 years of experience as a plant mechanic. [33] Turbet was a qualified plant mechanic who was assisting Langenhorst with his work on the day of the incident on a voluntary basis. This was unbeknownst to the Defendant. At the time of the incident, Turbet was working on a second machine approximately 20 metres away. [34] The incident arose in circumstances where Langenhorst was performing maintenance on two parts of the machine, namely, testing for oil leaks and attempting to identify the malfunction in the chain saw. This type of maintenance is regarded as routine, as opposed to major works which would require stripping down the machine. The grabs could not have closed if Langenhorst had turned off the engine of the Feller Buncher and isolated the hydraulics before working on the head. [35] Langenhorst appeared to have loosened one or more wires in the junction box such that the black and red wires became disconnected whilst the engine was running and with hydraulics engaged. This appears to have had the unintended result of operating the grabs. Operations Manual [36] The Operations Manual for the Feller Buncher contained 'Safety Precautions' including the following requirements: 'While the engine is running DO NOT leave the operator's cabin without isolating the hydraulics to the base and head.' 'NEVER stand in front of the head with the arms open and the engine running. A malfunction could cause the arms to close or the saw to operate.' 'Before carrying out any work on the saw bar or any other part of the head, turn the engine off.' 'Before commencing maintenance on head, clear around the machine to make a safe work area. Lower the head to the ground or rest on a secure tree stump. Stop the engine and remove the key.' [37] A 'Danger' warning for the machine included the statement: 'Before servicing any part of this machine always ensure: - that the head is on the ground and all suspended components are fully lowered and supported - that the engine is switched off - that the hydraulic isolator switch is in the off position. Never place yourself or allow personnel within grabs of the arms or roller arms.'

Systems, instruction, training and supervision [38] Langenhorst used a tag out system to prevent inadvertent operation of the Feller Buncher while he was working on it. This entailed him placing a 'do not operate' tag on the ignition key of the plant prior to leaving the cabin. [39] The usual process of checking for an oil leak was to keep the engine running and hydraulics engaged. [40] There was no documented procedure for tagging out and isolating the Feller Buncher in the course of servicing the machine. [41] To the extent that the Defendant had implemented a tag out and isolation procedure for servicing the machine it was inadequate because the Defendant's systems of work incorporated a discretion on the part of Langenhorst to adopt procedures that he considered safe. [42] Questions and answers extracted from a record of interview on 12 October 2004 between the Prosecutor and Langenhorst appear below: Q22: Was there a way to determine the fault in the processing head of the Feller Buncher while the operations of the processing head were isolated? A: With the assistance of another person Yes. Q23: Why did you not get John Turbet's assistance? A: I was chasing an oil leak so it needed [to] have the machine running while I tested the saw out function. I thought I could do this safely as I was standing behind the head away from the jaws and saw. I know what the head can do so I never stand where I can be caught. Q24: Could you have determined the fault in the processing head while not placing yourself in a position where you were at risk? A: Yes I thought that I was not in that position.' [43] Questions and answers extracted from a record of interview on 13 May 2004 between the Prosecutor and Stephen Pope appear below: Q69: Were you aware that William Langenhorst had worked on plant while it was running before 14 June 2003? A: Yes. It is necessary on occasions to do tests and checks on the machines while they are running but Bill did not run plant while repairing it. Q70: Was any instruction provided to William Langenhorst about working on plant while it was running? A: Yes. On the job training, communication, warning labels and workshop manuals. I knew that Bill was familiar with the manuals. I had never seen or herd [sic] of Bill working on plant while there was a danger of being court [sic] up in it. Q71: What were those instructions? A: I can't remember any specific instructions but when Bill was working on plant it was placed in a position that if any thing failed, nobody was in a position to be injured if it was running or not. Q72: What safe systems were in place while William Langenhorst was working on plant when it was running before 14 June 2003? A: Firstly work shop manuals would be consulted. Then Bill and I would set the machine and put our self's in such a position that we could not be injured if some thing went wrong. Or we would use the hydraulic isolator. Q: 74: Was it normal practice to work on plant while it was not running? A: Yes. Q107: What systems were in place to control risks associated with working on and around plant while it was running? A: Training, workshop manuals, safety labels and verbal instruction, consultation. Normally plant would be isolated or person would not be in a position were [sic] they were at risk.'

[44] Langenhorst's training on the Feller Buncher consisted principally of self-taught knowledge by reference to the Operations Manual. [45] Questions and answers extracted from a record of interview on 13 May 2004 between the Prosecutor and Stephen Pope appear below: Q38: What experience did William Langenhorst have maintaining the Feller Buncher involved in the accident on 14 June 2003? A: Bill had maintained this machine for 3 years. Q39: What training did William Langenhorst receive on the Feller Buncher? A: On the job training. This involved instruction form [sic] the supplier, instructions form [sic] myself and other operators and consultation with other trades such as hydraulic specialists and auto electricians. Q40: What information was given to William Langenhorst so that he could safely maintain and repair the Feller Buncher? A: Verbal information, workshop manuals warning labels. He was also provided with this training and instruction by TAFE and Forestry mechanics during his apprenticeship. Q41: What were the verbal instructions provided to William Langenhorst? A: As I and other operators worked with Bill on the job, we discussed day work and safe systems of work were part of those discussions [sic]. Q66: Was William Langenhorst instructed to work on plant in any particular manner? A: Bill is a fully qualified diesel and automotive mechanic and is more qualified to do maintenance and repairs than any other employee so the instructions I gave Bill were to follow safe working procedures, which he always did. [46] Langenhorst was working unsupervised on the day of the incident. As an experienced employee, Langenhorst worked without supervision most of the time. Langenhorst was often required to work when plant and other employees were not working. This was exemplified by the incident occurring on a weekend. [47] Langenhorst's supervisor, Stephen Pope, was asked in a record of interview with the Prosecutor on 21 October 2004: Q32: Would you expect that Langenhorst would isolate the hydraulics when he was working around the jaws of the Feller Buncher? He answered: A: Yes.' Following the incident [48] Following the incident the Defendant engaged Eden Forests Management Services and in consultation with employees developed documents titled 'Safe operating procedures for plant mechanic' and 'Danger sticker for plant, Forwarder, Harvester, Feller Buncher'. These documents were laminated and placed in the operator's cabins of plant.

[49] The safe operating procedures included statements that: 'Prior to conducting any maintenance or repair work to any machinery with attachments (such as blades, harvester heads, grapples etc) must ensure that these attachments are safely grounded, the engine turned off and safety lockout systems are engaged.' 'When testing the machines or attachments, ensure that any testing is done from the operator cab and that no person enters the testing zone during that time.' 'All operators and maintenance personnel need to be made aware of all the safety precautions in the manufacturer's manual and understand what levers and buttons operate what attachments.' Prosecution [50] On 14 June 2003, the Defendant, S.P. & H.M. Pope Logging Pty Limited (ACN 002 414 048) contravened Section 8(1) of the Occupational Health and Safety Act 2000 (NSW) in that on that date at compartment 146 Nadgee State Forest, No 125 on the Nadgee Road, South of Eden, in the State of New South Wales, the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular William Langenhorst. 4 In addition to the agreed facts and other matters detailed, the prosecutor also, without objection, provided twenty nine photographs and a Factual Inspection Report dated 4 July 2003 prepared by Inspector Constable. 5 The photographs which are of assistance depict the mechanical harvester (Feller Buncher) involved in the offence incident as well as the defendant's workplace on the day of the incident in Nadgee State Forest. 6 On behalf of the defendant, the following has been tendered without objection: (i) Affidavit of Mr Stephen Pope sworn 2 November 2005 with annexures to which I will refer as appropriate; Mr Pope, together with his wife, is a director of the defendant. (ii) Affidavit of Mr John Turbet sworn 2 November 2005. Mr Turbet was working with Mr Langenhorst when he was injured. He has some twenty five years experience in the forestry industry as plant mechanic, workshop supervisor and workshop manager. (iii) Affidavit of Ms Erica Hansen. Ms Hansen operates a business called Eden Forest Management Services Pty Limited and has done so since 2001. Prior to that, Ms Hansen worked with New South Wales State Forests as a forester for ten years. Through her company, Ms Hansen is in the business of assisting logging contractors in south east New South Wales and the east Gippsland area in Victoria to develop and maintain their occupational health and safety management systems. In that capacity, Ms Hansen has been working with the defendant since 2001. 7 The defendant has no prior convictions. Mr Pope was not required for cross-examination Relevant principles

8 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 9 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.' 10 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.

11 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 12 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 13 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

14 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). 15 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. 16 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 17 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

18 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

19 As the defendant has no prior convictions, the maximum penalty for the offence is $550,000. 20 The defendant owed an obligation to ensure that a safe system of work existed and was communicated in relation to servicing the Feller Buncher. Given the inherently dangerous nature of the machinery, it was foreseeable that a risk to safety existed if precautionary measures as to it's operation were not in place. 21 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 22 As set out in the facts, the defendant was engaged in the business of hardwood thinning. That task involved the use of a machine known as a Feller Buncher. A Feller Buncher is a machine used in the task of timber harvesting. It grabs and holds trees to enable them to be felled. The machine consists of two tracks which are hydraulically propelled as well as the main body of the machine, which includes an operator's cabin, a diesel engine and drive train. Attached to the body of the machinery is a hydraulic arm. At the end of the hydraulic arm is a processing head, which consists of two hydraulically operated arms and a hydraulic chainsaw.

23 Mr Langenhorst was employed as a mechanic and was required to conduct routine maintenance work on machinery such as the Feller Buncher. On the day of the incident, Mr Langenhorst was testing the Feller Buncher for oil leaks and to ensure that the chainsaw function was working properly. While testing the machine, he noticed the chainsaw was malfunctioning. Mr Langenhorst left the operator's cabin to check the junction box in the processing head, suspecting that the malfunction was due to an electrical failure or oil leak. He left the engine and hydraulics running while he was doing this. As he loosened the screws connecting wires to the head, he dropped his screw driver. As he bent down to pick it up, the arms of the machine began to operate. Mr Langenhorst's right leg was drawn into the machine and crushed. As a result, his leg was amputated and he also had a colostomy due to a crushed groin.

24 There is some speculation as to whether adjustment of the wiring by Mr Langenhorst or some other factor caused the arms to operate. Nevertheless, it is clear that had Mr Langenhorst turned off the engine and the hydraulic functions before undertaking work on the processing head, his injury would have been avoided. The need to turn the Feller Buncher engine off to avoid the risk of injury was highlighted in both the Feller Buncher manufacturer's operational manual as well as on a danger sign in the operator's cabin. The operational manual, under the section titled 'Safety Precautions', specifically set out: · While the engine is running, DO NOT leave the operator's cabin without isolating the hydraulics to base and head. · NEVER stand in front of the head with the arms open and the engine running. A malfunction could cause the arms to close or saw to operate. · Before commencing maintenance on head, clear around the machine to make a safe work area. Lower the head to the ground or rest on a secure tree stump. Stop the engine and remove the key.

Given all of the above, what was essential was that the defendant ensure those operational procedures were observed and applied.

25 It is apparent the defendant was committed to safe methods of work well before Mr Langenhorst's accident. This approach was emphasised through practices such as regular worker safety audits, and monthly tool box meetings. For work related to or conducted on the Feller Buncher, the defendant had a number of systems in place. Mr Pope, in an interview of record with the prosecutor dated 13 May 2004, enumerated a number of procedures which constituted a safe system of work in relation to the Feller Buncher. These included training, consulting workshop manuals, safety labels and ensuring the use of a hydraulic isolator when working on the machine or ensuring a person was not in a position near the machine in such a way that would put them at risk. 26 Mr Langenhorst had received training for the Feller Buncher on-site from the supplier of the machine as well as Mr Pope and other auto mechanics and hydraulic specialists. Overall, the bulk of his knowledge was self taught, acquired from the operational manuals. His twenty years of experience as plant auto mechanic, coupled with maintenance of the Feller Buncher for three years was the most likely factor in the defendant's willingness to allow him to undertake work alone and unsupervised.

27 The defendant's trust in Mr Langenhorst's expertise and knowledge also extended to his belief that Mr Langenhorst would undertake work in a safe fashion. When Mr Pope was queried by the prosecutor in a record of interview dated 13 May 2004 as to whether or not Mr Langenhorst was instructed to work on the plant in a particular manner, Mr Pope replied: Bill is a fully qualified diesel and automotive mechanic and is more qualified to do maintenance and repairs than any other employee so the instructions I gave Bill were to follow safe work procedures, which he always did. 28 Mr Langenhorst was regarded not only by his employer as a safe and reliable worker. His colleagues also viewed him in a similar light. Mr Turbet, who was with Mr Langenhorst on the day of the accident deposed: I have worked with and observed William Langenhorst over many years and I have always found that he was very dedicated to his job. He has excellent diagnostic capabilities and I found him to be very much aware of the safety hazards that are present when maintaining this type of equipment. Bill's quality of work is very good and he is dedicated to his craft.

29 The decision of Mr Langenhorst to leave the machine and hydraulics running while he undertook the work in the manner that he did on that fateful day could only be described as a lapse of judgment. In the normal course of events, it was unforeseeable that he would choose to act as he did. The Feller Buncher operational manual was explicit in warning that the engine and hydraulics must be disengaged prior to any work being undertaken on the machine. Mr Langenhorst knew that but it would seem that knowledge was overridden by him relying on his experience at the expense of instructions to the contrary. As well, that knowledge had not been sufficiently reinforced by an insistence on adherence to an established safe work procedure. 30 Although Mr Langenhorst was a reliable and experienced employee, the defendant should have recognised that lapses in judgment could occur, regardless of previous experience and conduct as to safety. Reliance on an employee, albeit an experienced one, to make the right choice as to a safe method of work falls short of the non-delegable duty of an employer to provide a safe system of work for its employees.

31 What should have been in place to avoid the risk of injury were clear directions to switch the machine off before approaching the processing head to undertake maintenance work. In the absence of having a written safe work procedure document, the defendant should have ensured, even with experienced employees, that this was communicated and reiterated by way of re-training and constant reinforcement that the machine should be turned off before any type of maintenance work was to be undertaken on the head of the Feller Buncher. It was entirely foreseeable that a failure to do so could result in severe injuries.

32 It is also 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. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 33 After the accident, the defendant sought to remedy the absence of safe work procedures for employees conducting repairs, tests and maintenance work on plant and harvesting machinery. To undertake this task, it engaged the services of Ms Erica Hansen of Eden Forests Management Services. Since 2001, Ms Hansen and her company have been involved in assisting the defendant to maintain and develop its occupational health and safety management system. One of the new documents devised after the accident, entitled Safe Operating Procedures Plant Mechanic, set out new safety procedures and warnings similar to those contained in the Feller Buncher operational manual. They included the following instructions:

· Prior to conducting any maintenance or repair work to any machinery with attachments (such as blades, harvester heads, grapples, etc) employees must ensure that these attachments are safely grounded, the engine turned off and safety lockout systems are engaged. · All operators and maintenance personnel need to be made aware of all the safety precautions in the manufacturer's manual and understand what levers and buttons operate what attachments. 34 That Safe Operating Procedure document was laminated and placed in the operator's cabin of the Feller Buncher.

35 The procedure document also required the operational manual to be kept in the operator's cabin, and for maintenance to be carried out as set out in accordance with the operational manual guidelines. Another measure taken by the defendant was to place new danger stickers for operators of machinery such as forwarder, harvester and Feller Bunchers and to ensure that these were placed in prominent positions. 36 Additionally, Mr Pope introduced the additional measure of on-site logging supervisors checking to see that all operators and plant mechanics followed safe work procedures. Whether safe work procedures were being followed was also incorporated as a criteria of the regular occupational health and safety audits conducted by Ms Hansen on behalf of the defendant.

37 Mr Pope also deposed in his affidavit that the company was in the process of purchasing new machines with computers in them that could diagnose hydraulic or electrical problems without the need for the operator of the machinery to leave the operator's cab. 38 Considering all of the above, I assess the offence as being in the mid range of seriousness and will assess penalty on that basis. 39 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

40 Considerations of general and specific deterrence are relevant in this context because the defendant operates in an industry where the risk to the safety of workers is a foremost consideration and exists as a very real threat. 41 Although counsel for the defendant submitted that there was little need to consider specific deterrence, specific deterrence is not a matter to be lightly disregarded. In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 42 However, in light of the mitigating steps the defendant has taken since the accident, the weight accorded to specific deterrence should be tempered accordingly. 43 Despite the serious accident and injuries which befell Mr Langenhorst, it is clear, as acknowledged by the material before me, that well before Mr Langenhorst's accident, the defendant had taken a very responsible and proactive approach to it's occupational health and safety obligations. Up until Mr Langenhorst's accident, no accidents had occurred at the defendant's workplace since the company's inception in 1989. 44 Since 2001, the defendant has engaged the services of Ms Erica Hansen, an occupational health and safety consultant with expertise in the logging industry. Ms Hansen was instrumental in helping the defendant implement safe work procedures and develop an occupational health and safety manual. She also facilitated and continues to facilitate regular tool box meetings with the defendant's workers as well as conducting regular safety audits and site safety inspections. Ms Hansen deposed in her affidavit that Mr Pope was very safety conscious and actively involved in workplace safety issues. She stated: Stephen was one of the first contractors to engage my services to do the above and has been very pro-active in the development of safe work procedures and policies (eg: working after hours; truck loading), emergency procedures and listening to the needs of his workers.

Any suggestions that I have indicated to him he has been happy to follow up with. This has been an ongoing process over the last five years.

I have no hesitation in advising anyone that during my dealings with Stephen I have found him to be very pro-active and co-operative with the development and maintenance of his Safety Management System for his Company and that he has genuine concern for the safety and welfare of his workers.

45 Mr Pope's commitment to work place safety is also supported by a letter dated 24 August 2005 from Mr Steve Dodds, Acting Regional Manager, Southern Region, State Forests of New South Wales. Mr Dodds stated that the defendant has been at the 'forefront of contractor safety performance in the Eden Management Area', especially in the early adoption of the Forest NSW contractor pack as to improvement to safety systems. Mr Dodd also noted that the defendant was a 'leader in the adoption of new methods and systems, particularly in the area of mechanisation'. These new methods and systems have removed significant risks to safety associated with manual felling. 46 The above evidences a clear commitment on the part of the defendant to workplace safety.

47 Counsel for the defendant has submitted that the fact that the defendant is a small, family run business with ten employees is a factor to be taken into account for sentencing purposes. That submission is premised on s6 of the Fines Act (1996) which states as follows: 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.

48 On behalf of the defendant, no submission was made as to the defendant's financial means to pay any penalty imposed. Rather, the tenor of the submission was that the defendant company was a relatively small family run concern and not a large national or multinational corporation, as is often the case in workplace accidents. Mr Pope deposed that after Mr Langenhorst's accident, his initial response was to shut down the company. However, due to high unemployment in the local area and a commitment to continue to provide work to his current employees, he decided he had an obligation to improve on safe work methods and keep the business running. 49 I believe the proper approach to be adopted was 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. 50 In assessing the impact of the plea, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. I assess that discount at twenty five per cent. 51 The prosecution has properly conceded that there are powerful subjective factors to be taken into account in mitigation. The defendant has, on any view, been an exemplary corporate citizen in relation to workplace safety. The defendant entered a plea of guilty at an early stage and has fully cooperated with WorkCover in all aspects of its investigation. It has expressed genuine contrition and remorse for the accident. Further, and very commendably, it provided extensive assistance to Mr Langenhorst and his family at the time of accident. Mr Langenhorst has returned to work with the defendant on a two day a week basis as he is still undergoing medical treatment. The defendant has made provision for Mr Langenhorst to undertake maintenance work on machinery at a shed erected on the defendant's premises so Mr Langenhorst does not have to travel to various work sites to carry out the work. Throughout the period, the defendant has continued to pay Mr Langenhorst above award wages. 52 Taking into account all the matters I have referred to, I determine a penalty, in this matter of $54,000. 53 I make the following orders: (1) The defendant is guilty of the offence charged. (2) I impose a penalty in this matter of $54,000. (3) I allocate a moiety to the prosecution on the usual terms.

(4) I order the defendant pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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