WorkCover Authority of New South Wales (Inspector Kitchen) v Tixana Manufacturing Pty Limited

PROSECUTOR: Ms A F Backman of counsel

SOLICITORS: Mr J Lucas WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr P Newall of counsel

SOLICITORS: Mr T Capelin Australian Business Lawyers

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J

10 APRIL 2001 MATTER NO. IRC 2713 OF 1999

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR KITCHEN) V TIXANA MANUFACTURING PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983.

1 The matter before the Court is a prosecution by Paul Kitchen, as an inspector of the WorkCover Authority of New South Wales (WorkCover) of Tixana Manufacturing Pty Ltd (the defendant) alleging a breach by the defendant of s 15(1) of the Occupational Health and Safety Act 1983 (the Act). 2 The summons alleges that: … the defendant being an employer, FAILED to ensure the health safety and welfare at work of all its employees and in particular Hayden Peter Peka, contrary to Section 15(1) of the Occupational Health and Safety Act 1983, in such case made and provided. 3 The particulars of the charge are: 1. At all material times, the defendant conducted business as a manufacturer of foodstuffs from premises at 17 Elizabeth Street, Campsie, New South Wales. The defendant utilised a dough extruder machine as part of its soya snack food production line at those premises. 2. At all material times, the defendant employed Hayden Peter Peka as a machine operator. His duties included operating the Dough Extruder Machine at the premises. 3. The system of work utilised at the said premises for operating the Dough Extruder Machine, required persons performing this task to manually pour dough from plastic buckets into the cutting trough from an adjacent platform. There was no warning as to the danger posed by the risk of contact with the rotating cutting blades, or the absence of guarding over the front cutting trough to prevent access to the blades which were in operation at the time. 4. On 19th August 1998 ("the said date") Peka had been employed by the defendant for approximately three and half months. On the said date, immediately prior to the happening of the accident, he was working alone and was not being directly supervised. A piece of dough had become jammed in the bowl of the machine on the opposite side to where he was standing. He reached across and tried to push the dough into the cutting trough of the machine when his left arm became caught in the rotating blades. He was pulled into the trough, sustaining severe laceration and fracture injuries to his left arm together with severe lacerations to the chest, arm, stomach, internal organs and face. His left arm was amputated below the elbow. 5. The defendant failed in any or all of the following aspects: i. The defendant failed to provide such training as may be necessary to ensure the health and safety at work of its employees in that it failed to adequately train Hayden Peter Peka in a safe method of operating its Dough Extruder Machine ii. The defendant failed to provide and maintain a system of work that was safe and without risks to health of its employees and in particular Hayden Peter Peka, for the operation of a Dough Extruding Machine, in that it failed to provide or maintain a system of work for the operation of the said machine that did not place employees at risk of injury from rotating blades contained in a cutting trough on the machine whilst adding dough to or inspecting the contents of the dough in the machine. iii. The defendant failed to provide and maintain plant, to wit, a Dough Extruding Machine, that was safe and without risks to health of its employees and in particular Hayden Peter Peka in that it failed to ensure adequate guarding: a. about the cutting trough of the said machine to guard against and prevent risk of contact with the rotating blades contained in the trough while the machine was in motion or use; b. for the drive chains and sprockets on the Dough Extruder Machine. c. for the drive chains, sprockets and spur gears on the fryer conveyors along the production line of the Dough Extruder Machine.

iv. The defendant failed to provide such supervision as may be necessary to ensure the health, safety and welfare at work of its employees in that it failed to adequately supervise Hayden Peter Peka whilst pouring dough into the Dough Extruder Machine. 6. As a result of the said failures there was a potential detriment or risk to the health and safety of the defendant's employees and in particular Hayden Peter Peka who was required to use the Dough Extruder Machine at work in that there was a risk of injury from the unguarded dangerous parts of the said machine, to wit the rotating blades and other parts of unguarded machinery as particularised in 5. iii above. 7. As a result of the said failures, on 19 August 1998, Hayden Peter Peka sustained serious injuries referred to above, from the dangerous parts of the said machine to wit the unguarded rotating blades whilst utilising the said machine at work. 4 The defendant pleaded guilty to the charge. 5 The defendant has no previous convictions. 6 The Court had tendered to it a number of agreed documents: Agreed Statement of Facts; [A copy of Inspector Kitchen's factual inspection notes was not attached, as it was said to be, and was, at the request of the Court supplied later by WorkCover.] 24 Photographs. 7 In citing from the documentation, I have not reproduced documents, photographs etc referred to as being attached. 8 The defendant did not require Inspector Kitchen for cross-examination. 9 At this point I note that the absence of Inspector Kitchen's report had unexpected consequences for the publication of this judgment. 10 Examination of Inspector Kitchen's notes when later supplied by WorkCover revealed an important discrepancy between what he had recorded and what was stated in par 10 of the Agreed Statement. 11 Part of his report was in the following terms: Particulars of the removable chute/hopper for the top of the Extruder is as follows: (See photograph No: 15a.) Note: the Removable chute/hopper was according to the injured person's statement, in place on the top of the Extruder cutting trough at the time of the accident, but when I attended the accident scene is was on the floor. (See photograph No. 16 and 17.) 12 Paragraph 10 of the Agreed Statement is set out in full further on in this judgment, but the discrepancy related to the placement of the chute/hopper as at the time of the accident. 13 The discrepancy was drawn to the attention of the parties by the Court at a mention on 6 June 2000 and they were asked to reconsider the relevant paragraphs of the Agreement Statement of Facts. 14 In response to a series of communications from my Chambers as to the status of the revised para 10, the amended document was tendered at a further mention of the matter on 12 March 2001. 15 I stress that the discrepancy as revealed was not such as to call into play the principle as to the appropriate approach to fact finding in relation to sentencing under the Act as set out by the High Court in R v Olbrich [(1999) 199 CLR 270 at 281]. In that case the majority of the Court said: "[27] As to the standard of proof that should be applied, we should adopt what was said by the majority in R v Storey [[1998] 1 VR 359 at 369, per Winneke P, Brooking and Hayne JJA and Southwell AJA] - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.' " 16 In this case, the prosecutor and the defendant had presented in an Agreed Statement, facts adverse to the defendant which did not appear to stand with part of the documentation on which the Statement was based. 17 In relation to the plea, Mr P Newall of counsel, for the defendant, adduced evidence, orally and in affidavit form, from Ms Carolyn Davies, Acting General Manager of the defendant at the time of the accident. 18 Present in the Court was the company's now managing director, Mr Ping Tan. 19 Ms A F Backman of counsel, appearing on behalf of the prosecutor, relied upon written submissions, supplemented by some oral submissions in reply. Submissions - Prosecutor 20 The prosecutor's submissions as to the various particulars were: Failure to Provide Training 4. Prior to the date of the accident, Peka had been employed by the defendant for about three and one half months. When he commenced his employment, his training consisted of an "on the job" demonstration while the machine was in operation: paragraph 12, Agreed Statement of Facts. Failure to Provide and Maintain Safe System of Work 5. At the date of the accident, the defendant had a system of work in operation at its premises for operating the extended [sic] [extruder] machine. The procedure consisted of requiring personnel to manually pour dough from plastic buckets into the cutting trough from the adjacent work platform; 6. The procedure referred to in paragraph 5 above was reduced to writing as at 24 July 1995. However, it did not provide any warning concerning the risks posed as a result of contact with the rotating cutting blades, nor did the written procedure deal with the consequences that may flow from the absence of guarding over the front cutting trough: paragraph 11, Agreed Statement of Facts; Failure to Provide and Maintain Plant 7. During the course of the investigation of the incident, Inspector Kitchen discovered that no emergency control buttons were located on the platform (used by operators to pour dough into the front cutting trough). Further, the control mechanism was located on an electrical box which was situated on the factory floor and which was not accessible to the person standing on the platform. On the side of the platform facing the cutting trough, there was no top handrail (although the platform was fitted with a mid-rail approximately knee height and a toe board): paragraph 8, Agreed Statement of Facts; 8. The investigation also revealed that the clean (sic) [chain?] sprocket drive of the extruder machine located at the rear and left sides was not guarded to prevent access to the chain and sprocket drive mechanism while the machine was in motion; … (The cause of the accident was unrelated to these initial exposes: paragraph 9, Agreed Statement of Facts.); 9. Prior to the accident, a chute guard (designed to fit over the cutting trough and deactivate the mechanism when removed) had been removed and the electrical interlock switches disabled which allowed the machine to operate without the guard being in place: … 10. At the time of the inspection, the chute guard (which had apparently been taken off the extruder machine for the purpose of repairs) was on the factory floor: paragraph 10 Agreed Statement of Facts. Failure to Provide Supervision 11. Peka received his training from his supervisor and a fellow operator John Tuwhakaeaua Papa ("Papa"). Peka was told by Papa to switch the machine off while cleaning it or going near the area of the cutting trough. However, at the time of the accident, Peka was unable to stop the machine because the emergency stop button was not accessible to him (it was on the control panel at factory floor level adjacent to the elevated work platform). Also, at the time of the accident, Peka was working alone and was not directly supervised: paragraphs 12, 13, 14, Agreed Statement of Facts. … Objective Features 12. The primary factor to consider in relation to penalty here is the objective seriousness of the offence: Fletcher Constructions Australia Ltd v WorkCover Authority of NSW (Inspector Fisher) (1999) 91 IR 66 at 77-81. 13. A number of objective features in this case, which call for the imposition of a substantial penalty, are as follows: a) The maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed was $550,000; b) The need for general deterrence; c) The defendant's failure to provide a safe system of work and inform itself of safe working; d) the nature of the offence in that there were available simple steps to remedy the defective system of work; e) the nature of the offence in that the injuries manifested the degree of seriousness of the relevant detriment to health and safety. Need For General Deterrence 14. In fixing an appropriate penalty in the present case, an objective feature is the need for general deterrence as this is one of the main purposes of punishment. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388, this principle was applied in the context of breaches of the Act. … Failure to Inform Itself of Safe Working 16. When considering a statute giving expression, as a matter of public policy, to standards of safety, management has a positive obligation to informing itself of circumstances of safe working: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh & Thora Saw Milling Pty Ltd (Waugh) (1995) 59 IR 89 at 100. Availability of Simple Remedial Steps 17. Another factor demonstrating the seriousness of the defendant's offence is the simple and straight-forward steps it was apparently able to implement after the accident in an attempt to remedy the defects of the system: see photographs 5(a), 11(a), 13(a), 15(a). The Degree of Seriousness of the Breach 18. The gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty. Nevertheless, the occurrence of injury, as here, manifests the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5 (Hill J) and Watson v Southern Asphalters Pty Ltd , unreported, Hungerford J, 21 March 1996 at 19. Subjective Feature: Plea of Guilty 19. The defendant is entitled to have taken in to account as mitigating the objective seriousness of the offence, its plea of guilty: Winchester (1992) 58 A. Crim. R 345 at 350, NSW CCA, per Hunt CJ at CL, Smart and Grove JJ concurring. 20. This Court is specifically required to take into account, in the defendant's favour, the plea of guilty: see s439 Crimes Act 1900. This discount should reflect the plea and also the utilitarian considerations of saving Court time and the cost of any trial. Subjective Feature: No Prior Conviction 21. The defendant has no prior convictions. Submissions - Defendant 21 This is a prosecution under s 15(1) of the Act. A plea was entered at the first opportunity. There is a single charge with four particulars. The company is before the Court as a first defendant with no prior record. 22 The company accepts that for a worker to be injured is unacceptable, both in terms of the Act and it is also unacceptable to the company as an operation. 23 Head matters to be taken into account when considering penalty and mitigation are set out in Warman International Limited v WorkCover Authority of New South Wales (Warman) [(1998) 80 IR 326 at page 339] and in Haynes v CI & D Manufacturing Pty Ltd (No 2) (Haynes) [(1995) 60 IR 455 at 456]. The company has had in place since 1993 an employee expressly responsible for safety. It is the case that the worker had received, as the evidence best reveals, on-the-job training on the use of the machine before the injury. The injured worker had been told by Mr Papa to switch the machine off whilst cleaning it or going near the area. There was in place policy regarding safety matters at the time of the accident. It was not a broad and extensive policy covering every aspect of safety, but the company had turned its mind to safety before this accident occurred. 24 On the question of remedial measures, which is a matter emphasised in Warman (at 339) the company after the accident gave all the workers refresher training. The company in fact closed down production for a day to enable that to occur. Ms Davies says that the company reviewed its safety policies and procedures, and included in that process the workers, who were consulted about their views as to safety, which consultation is not an unimportant part of any process of review. 25 Significantly the company ordered not only a full machinery audit from the commissioners of the machinery but also a full safety audit. The amount of $10,000 was spent in following the recommendations of those two audits with the result that a number of machines were modified. If a machine can be improved after an accident clearly improvements were there to be made. The defendant cannot shy away from that. As a corollary, the company also pursued full industry quality assurance accreditation and achieved that. The quality assurance goes to hygiene and cleanliness and to efficiency of production, as well as to safety. 26 The company has introduced a level of supervision that was not there before, which has had the effect of increasing the number of supervisors to workers from one to five, for the same number of workers. 27 Another matter is contrition. The plea itself represents contrition (see Waugh). One looks at the steps the company took after the accident. The job was kept open for the injured worker. He was paid full pay after the accident whilst he was off. Company officers visited him in hospital each day endeavouring to comfort and assist by material provision to the injured worker's family and counselling and very sensibly offered counselling to all other workers. That was a matter that is clearly a measure of its contrition. These matters are highly relevant (see WorkCover Authority of New South Wales (Inspector McDonald) v Commonwealth Steel Company Limited [(1999) 90 IR 297 at 309]. 28 The company fully co-operated with WorkCover. 29 The company has taken a range of prompt actions after the accident, both in attempting to assist the worker and his family, and particularly relevant to deterrence, in causing a number of substantial changes to be made to both the machines and practices in respect of safety. That means specific deterrence is not a matter which will weigh heavily in the penalty that the Court chooses to impose. It is clear that the company is now, and was before, demonstrably aware of its obligations under the Act. General deterrence remains a matter for the Court. 30 Other matters are relevant to mitigation. The company is a good industrial citizen as that term is used in Waugh: in 1994 the Federal Minister for Primary Industry awarded the company an award for innovative agriculture. It sponsors a number of charities, including the Celiac Society, an organisation that assists children with disabilities related to particular diets, and the Variety Club. It has been awarded the National Australia Bank Small Business Multicultural Award. 31 This injury is a serious matter. A worker injured is not acceptable in any circumstances. It is at the lower end of the middle range or upper end of the lower range. That is the starting point for any sentence that is to be imposed, again having regard to the size of the company. The guilty plea gives rise to "a substantial discount" of itself, confirmed in the decision of Warman in this Court. 32 The company has two shifts a day, six days a week. There have been a very substantial number of hours during which employees have worked on the machines. In those circumstances the fact that this is the first time that the defendant has come to the notice of the Prosecutor becomes an even more relevant matter as to mitigation given the number of industrial transactions (see Haynes). 33 This is a charge arising from a single incident. It has four particulars. The proposition advanced in Warman and Waugh is that of the principle of totality. Obviously only one sentence will be imposed given the one charge, but in circumstances where it will not be increased because of the fact there is more than one particular of the charge. Submissions - Prosecutor - In Reply 34 The objective features of the case must take precedence, see Fletcher Constructions. The Court would place little relevance or significance on any policies that existed to protect workers at this defendant's workplace, at least prior to the accident. The policies that were in force at the time were not policies at all, but merely job descriptions. 35 Remedial measures can be a two-edged sword. This accident really occurred because there were a number of very dangerous omissions in place on the day of the accident. There was no guard over the cutting trough of the extruder machine (but in addition to that, the chute guard which normally rested on that machine had been taken off.) A nylon cam had been taken off and it disabled the machine. That meant that the machine would not stop if there was no guard there. (Note: The submission in brackets was based on the incorrect statement in para 10 of the Agreed Statement of Facts.) Consideration 36 Having reviewed the summons, the particulars of the charge and the statement of agreed facts, I accept that the plea of guilty was properly made and enter a verdict of guilty. 37 I now turn to the matter of penalty. 38 The machinery being used by the injured employee was described in the Agreed Statement of Facts: 7. The said machine was a soya dough mixing/extruding machine forming part of a soya chip production line at the premises. This production line consisted, in addition to the mixing/extruding machine, of two frying conveyors, which operated to cook soya dough cut and shaped in the extruding machine to form the finished product. The extruding machine was approximately 90.75cm long x 130cm wide x 160cm in height from the floor. It comprised of an open front cutting trough or bowl 60cm in width x approximately 90cm long. Inside the trough was a metal shaft constructed of stainless steel 99cm long x 4cm in diameter. 25 knives were fitted along the length of the shaft at approximately 60 degrees rotation. Each blade was 13cm long x 4 cm wide x 0.6cm thick. At the time of inspection no guarding was fitted at the mouth of the front cutting trough to prevent risk of persons coming into contact with the shaft and rotating blades while they were in motion. It was noted that at the time of inspection that a rear cutting trough of the machine, of similar construction to the front trough, was fitted with integral bars at the mouth of the trough to prevent access to the rotating shaft and blades therein. 8. Adjacent to the front cutting trough of the machine was a steel working platform 102.5 cm in height from the factory floor. This platform was accessible by means of a steel 5 step fixed staircase. The platform was utilised by operators to pour dough into the front cutting trough while the Extruder Machine was in operation. The platform was fitted with handrailing, 192.5cm in height from the factory floor surface on both the left and right hand side, facing the trough. Midrails and toe boards were also fitted. On the side of the platform facing the trough, there was not top handrail fitted to the platform. On that side the platform was fitted with a mid rail at approximately knee height to a person standing on the platform, and a toe board. Handrailing was fitted to the access steps on the left hand side only. No emergency control buttons were located on the platform. The control mechanism of the machine was located on an electrical control box situated on the factory floor, adjacent to the platform. This was not accessible to a person standing on the platform. 9. The extruder machine, and its adjacent frying conveyors, were electrically powered and driven by chain and sprocket mechanisms. At inspection, the chain sprocket drive of the extruder machine located at the rear and left side of the same, was not guarded to prevent access to the chain and sprocket drive mechanism while the machine was in motion. The chain and sprocket drive mechanism to the frying conveyors located on the left hand side of the production line, was also unguarded allowing access to moving components while its conveyors were in operation. The lack of guarding on these components did not contribute to the occurrence of the accident to Peka on the said date. 10. Investigation revealed that the said machine was one of two such units utilised by the defendant in production of snack foods at the said premises. It had been purchased by the defendant from its manufacturer, Kovadi Pty Ltd, and operated at the said premises from July 1990. The machine was manufactured with interlocked chute safety guards designed to fit over the cutting trough, (in the form of a guard preventing access (which can be seen in photograph 5a),) and to deactivate the mechanism when removed. As at the said date, this chute guard had been removed from the front cutting trough, and the electrical interlock switches disabled, to permit this portion of the machine to operate without the guard being in place. According to Siew Ping Tan, the defendant's Managing Director, a number of problems were experienced during the original commissioning of the machine due to the nature of the produce being processed. Kovadi Pty Ltd was required to ensure that the machine worked properly before it was paid and sent an employee "engineer" to carry out some modifications to the machine. Tan believes that the guarding was removed at this time, and not replaced. (The chute/hopper was in place at the time of the accident but had been removed by the time of the inspection (and can be seen in photographs 16 and 17.) Other, similar mixing equipment in the defendant's factory was found to be fitted with adequate, operational guarding at the time of inspection. According to Tan, plate metal guarding fitted over the drive mechanism of the extruder and fryer conveyors had only "recently" been removed to effect repairs to those portions of each machine. They were not replaced upon completion of the repair, and were at the time of inspection, leaning against the factory wall. (Note: The words set out in bold represent the changes by the parties to the Agreed Statement of Facts following the drawing to their attention by the Court of the discrepancy between the original Statement and Inspector Kitchen's report.) 11. As at the said date, the system of work utilised at the said premises for operating the extruded [sic] machine required persons performing this task to manually pour dough from plastic buckets into the cutting trough from the adjacent work platform. The defendant maintained a written procedure for this task dated 24th July 1995. This written procedure did not provide any warning as to the danger posed by the risk of contact with the rotating cutting blades, or the absence of guarding over the front cutting trough. 14. Upon becoming caught by the machine cutting blades, Peka was unable to stop the machine himself, no emergency stop button being accessible to him. He [sic] machine was stopped by Papa who came to his assistance upon hearing his cries. Papa stopped the machine by depressing the emergency stop button located on the control panel at factory floor level adjacent to the elevated work platform. 39 Attached to the affidavit of Ms Davies was a copy of the defendant's safety policy in force at the time of the accident. That policy was a one page document attached as Appendix 1. Safety Standards, to another one page document headed "Tixana Worker's Rules". Point 3 of those Rules directed that "safety standards must be maintained by all workers (see Appendix 1)". The Safety standards in Appendix 1 consisted of a number of statements set out against twelve bullet points. Those points that arguably linked the use of machinery directly to health and safety were: OPERATE MACHINERY AND EQUIPMENT ACCORDING TO SAFETY OPERATIONS PROCEDURES MAKE SURE ALL MACHINERY AND EQUIPMENT IN YOUR SECTION ARE SWITCHED OFF AT THE END OF THE DAY; … YOU MUST REPORT TO YOUR SUPERVISOR ABOUT FAULTY MACHINERY, EQUIPMENT, TOOLS ETC. 40 The defendant's actions after the accident in relation to the work situation were described by Ms Davies in her affidavit, supplemented by oral evidence (indicated in round brackets): 13. Immediately after the accident, a refresher course was run for all employees in the use of every machine used by them. At the same time, a review was commenced into all the Company's safety policies and procedures, including the procedures for the operation of all machines. In addition, employees concerns about safety were canvassed, this included providing a suggestion box into which employees were allowed to place anonymous submissions. A copy of the report of training given to employees is annexed and marked "B". (The refresher course went to everything they had been trained on to start with, and is a procedure which she believes still happens today regularly. Ms Davies was present when the supervisor in charge of each area took the group of people who worked in that area through the refresher course. That involved each of them sitting at the machine with the person in charge demonstrating the whole procedure of the machine. The factory was actually closed down for that day.) 14. The Company fully cooperated with WorkCover and followed their recommendations. In addition, the Company commissioned a full safety audit from a safety consultant, Safety Net. The Company also commissioned a machine safety review by JC Designs, who are the contractors for servicing our machinery and equipment. JC Designs advised the Company of a range of modifications which they recommended us to make. Tixana contracted JC Designs to carry out these modifications, which they did. The modifications cost approximately $10,000 and were completed by September 1998. … 15. As part of the company's general review of policies and procedures, including safety procedures, the company has now attained, in March 1999, Hazard Analysis of Central Control Points ("HACCP") approval. This HACCP approval is a quality assurance standard specifically created for the food industry. HACCP approval is only given if the total running of a company's operation meets high quality and safety standards, and in this case approval was the result of 12 months' concentrated effort toward the standard by the Company. The HACCP approval has been independently audited in May 1999 and further audits have occurred in a 3 monthly basis. After February 2000, external audits will occur on a 6 monthly basis for 1 year and thereafter annual audits will take place… I am aware that the most recent audit was completed in March 2000 and that the Company's operations complied with the standards. 16. The company continues to employ a person with safety qualifications and responsibility for safety and has had in place such a position since 1993. 17. The company has a number of safety signs displayed around the factory and on all machines … Following the accident some of those signs were revised and additional signs added. 18. Specifically to improve safety, the Company has, since the accident, greatly increased the level of supervision of employees in the manufacturing area. The Company has divided the manufacturing area, previously supervised by one factory manager, into 5 divisions, and now had one supervisor for each division, a total of 5 supervisors. It is these supervisors who have first line responsibility for safety and training. 19. A copy of the new policies and procedures for safety and the use of machines, is annexed and marked "F". Included in the new procedure is a requirement that where an employee raises a safety issue with his or her supervisor, the supervisor must immediately take it to the Managing Director. The Managing Director ensures that all safety concerns get remedied forthwith. Employees were and are provided with safety documentation as part of their training. Employees must now, after all safety training, including induction training, sign to say that they have read and understood these documents. 20. I am aware that since the accident, the Managing Director has inspected and reviewed safety procedures and has assessed compliance with those procedures. I am aware that he conducts an ongoing review of safety procedures, on average, twice a week. In addition, I am aware that the workforce's safety representative does regular random safety checks. 21. Since the accident the Company has had trained 2 first aid officers. 41 In this case, the two soya dough mixing/extruding machines have been operated by the defendant since July 1990. 42 The nylon cams which operate the electrical interlocks to shut the machine off if the guard is lifted out of its closed position were absent from Mr Peka's machine, though they were present in a second extruder machine operated by the defendant. 43 At the time of the accident the company had 12 machines in use. Two more have been added since then. The company runs two shifts per day, six days per week. This is the first occasion it has come to the attention of WorkCover. On the one hand, that may have been the result of luck, rather than good management, in the light of the unguarded machinery. On the other hand, it may be that to the extent training has been given, including that going to safety, on relatively unsophisticated machines, that training has, until now, been adequate. I incline towards the latter view. Luck can only extend so far and for so long. 44 Mr Peka's training was described in the Agreed Statement as follows: 12. Peka had been employed by the defendant for approximately three and a half months prior to the said date. Upon commencement of employment, he was shown how to start, stop and operate the said extruder machine. This training consisted of "on the job" demonstration while the machine was operating. He received this training from his supervisor and a fellow operator, John Tuwhakaraua Papa. Peka had been told by Papa and his supervisor to switch the machine off before attempting to clean or to go into the area of the cutting trough. 45 Ms Davies described the training received by the injured employee at the time of his employment as follows: I understand from discussions with Linda Chen, Quality Control Manager and Ann Tran, Hayden Peka's supervisor that when Hayden was engaged, as with all new employees, he was shown all of the machinery relevant to his job and the machinery's use was demonstrated to him. In addition, he was observed operating the machines before he was allowed to operate them without immediate supervision. This method of training also included how to clean the machines. The procedure for cleaning the soya dough extruder machine in place prior to Hayden's accident is contained in annexure "A". 46 It was noted in the Agreed Statement that: 13. On the said date, immediately prior to the happening of the accident Peka was working alone and was not being directly supervised. 47 The failure of the defendant that resulted in this accident was a serious one involving, as it did, unguarded machinery. From the Agreed Statement of Facts (para 10), it would seem that the interlocked safety guard designed to fit over the cutting trough and to deactivate the mechanism when removed, had in fact been rendered useless by the disabling of the electrical interlock switches at some time soon after July 1990. 48 However, one matter must be stressed in relation to the deactivisation of the safety guard mechanism. That deactivisation was not made by the defendant. According to the Agreed Statement of Facts, the Managing Director "believes" that the removal of the guarding was a modification made by the machine's supplier to overcome problems being experienced with the machine during its original commissioning in mid-1990. The Agreed Statement does not assist the Court to know whether the defendant was aware of the deactivisation prior to the accident on 19 August 1998. 49 Other guarding had been removed more recently. It was also said at par 9 of the Agreed Statement that parts of the chain and sprocket drive mechanism to the frying conveyors were also unguarded allowing access to moving components while its conveyors were in operation. According to Mr Tan that guarding had not been replaced after repairs had recently been made to that equipment. 50 The manufacturer of the original equipment was named in the Agreed Statement. It does not seem that any action has been taken against that company pursuant to s 18 and s 49 (2). 51 My original understanding of the risk to health and safety set out in para 10 was that the entire interlocked chute/hopper/guard designed to fit over the cutting trough had been removed from the machine for eight years, thus removing all physical barriers to access to the cutting trough. 52 My understanding from reading the agreed amendment to para 10 (Ex 4) is that the physical barrier of the chute/hopper to the cutting trough remained in place, but the guard which was part of it had been removed, and the electrical interlock switches had been disabled so that the guard's removal did not deactivate the mechanism as it was intended to, whenever the chute/hopper was removed to gain access to the cutting trough. That second scenario was a serious one, but not as horrific as the first one, which, if it had existed, would have been. 53 The risk to the employee was compounded by the design of the machine in that, in particular, the emergency control buttons were located on the factory floor, adjacent to the work platform, and not accessible to the person standing on the platform. 54 Subsequent to judgment in this matter being reserved, the New South Wales Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) on 17 August 2000 delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and set out in that judgment is as follows: 160. The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In come cases a plea will not lead to any discount. 55 The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides: 22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 56 The guideline was adopted and discussed by Wright J, President in WorkCover Authority of New South Wales (Inspector Robert Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (unreported; 99/3369; 6/10/00). After setting out the guideline, his Honour said: Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 … … I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings. Subject to that consideration, the principles that should be applied are clear and well settled: see, for example, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474-476 and Page v Walso Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 21-24. … 57 The principles to be considered in the Court's approach to penalty have been set out in many of the Commission's decisions. Recent decisions include Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (Fletcher Construction) [(1999) 91 IR 66] which adopted the sentencing principles considered in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Lawrenson) [(1999) 90 IR 464]. 58 The principles adopted from Lawrenson in Fletcher Construction (at p77) were: However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. 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": see Independent Cargo & Wool Services Pty Limited v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at 4; Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) at 8-9. It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 96, the Full Bench of the then Industrial Court cited with approval a passage from the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: I consider that the primary factors to be looked at in relation to penalty in matters such as this are the nature and quality of complaint made out. These need not necessarily reflect death or injury actually occurring as a result of the failures, though all too commonly those circumstances are met with. It is plain from the history of this legislation that Parliament has reflected its increasing concern at the lack of safety in some aspects of industrial operation by markedly restating the duty of care and the penalties that were provided for breaches of the industrial Occupational Health and Safety Act , 1983. Again in 1991 by amendment penalties in relation to a corporation were raised from $100,000 to $250,000 and in the case of individuals, from $10,000 to $25,000. While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 59 The Court (Wright J President, Walton J Vice-President and Peterson J) in Fletcher Construction stated also (at 78 ff): As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. … As indicated in R v Dodd [(1991) 57 A Crim R 349 at 354], the proper approach is to first consider the gravity of the offence viewed objectively: … The court must ensure that the allowance afforded for subjective factors does not produce a sentence which fails to take account of the objective gravity of the offence: … In the case of an offence under s15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. … We have already mentioned that in Nesmat the Full Bench commented that an early plea of guilty will always result in a "substantial reduction" in the sentence imposed. Similar comments were made by the Full Bench in Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106-107: … As recognised in Alcatel , the extent of the reduction or "discount" in penalty which will be afforded in consideration of subjective features of a case will depend on the nature of the subjective factors and the circumstances of the case. For example, the decision of the Court of Criminal Appeal in Winchester (1992) 58 A Crim R 345 at 350 properly indicates that the degree of leniency to be afforded based upon an early plea of guilty will depend upon whether or not the plea of guilty resulted from a recognition of the inevitable. It is also appropriate to consider the nature of any assistance provided by the defendant to the investigation of the offence. 60 In WorkCover Authority of New South Wales (Inspector Keenan) v Lock (Lock) (unreported; Hill J; CT96/1135 and 1136; 13/3/97), Hill J said: The absence of anything in the nature of intent or any careless or wilful disregard of the duties imposed under ss 15, 16 and/or 17 of the Act, or indeed any actual knowledge of the existence of the statutory obligations, is not a defence, per se, to a charge thereunder; but is a very material consideration when determining the penalty to be imposed for any offence. 61 It was said in Warman (80 IR 326 at 339): The approach to the determination of penalty in cases such as these is now well settled. The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high. The approach to be adopted by a sentencing judge was discussed by the Full Court in Alcatel (at 106-107). We agree with the observations there made, particularly that in imposing penalty the sentencing judge must have regard to matters such as the making of a plea of guilty, co-operation of the accused with the WorkCover Authority, expressed contrition and measures introduced by the defendant to overcome deficiencies in safety which the accident had highlighted; … The obligations imposed upon employers by the OH & S Act of course extends to guarding employees against harming themselves through human error or failing to follow otherwise safe work practices. (at 107) 62 In Waugh (59 IR at 100 - 101) it was stated: When considering a statute giving expression as a matter of public policy to standards of safety, management has a positive obligation of informing itself of circumstances of safe working. In this case safe working required the guarding of an obviously dangerous running nip point, adequate safety instruction and, training. … The nature of the previous character to which regard is to be had in relation to a special statute touching industrial safety includes character as an industrial citizen. In this case failure to guard obviously dangerous parts of machinery had continued since 1967. In formal terms both the company and the personal defendant had a prior good character; not however due to their own conduct but due to the great good fortune that an obvious danger had not given rise to an injury. 63 It was noted in the Agreed Statement of Facts that the lack of guarding on certain machinery (in addition to that lack of guarding that was directly relevant) did not contribute to this particular accident. However, it should be realised that, even without an accident occurring, it is the risks to health and safety arising from such unguarded machinery which give rise to prosecution by WorkCover. 64 The risk to health and safety which arose from the long term de-activation of the electrical interlock safety devices is one I regard as serious. 65 In WorkCover Authority of New South Wales (Inspector Barbosa) v Leigh Mardon Pty Ltd (unreported, 98/1417, 30/3/99), Kavanagh J said: It is trite to state the obligation is on the employer to recognise dangerous moving parts on every machine in their operation and to ensure such parts are guarded. It is even more trite to reiterate, when that guard exists, it should be kept in place. … The exposure of both dangerous moving parts, either recognised or not recognised as a hazard by the employer, makes the quality of this offence one of a serious nature. There is an obvious culpability in this employer. The measure of gravity of this breach takes it into the most serious of categories. In mitigation of the objective seriousness of the offence, the Court is entitled to take into account subjective features. One such feature that can be considered in mitigation is the worksite safety procedures both in place at the time of the accident and put in place subsequent to the accident. 66 A further aspect of that last point raised by Her Honour is one considered by Cullen J in WorkCover Authority of New South Wales v Australian Iron and Steel Pty Ltd (unreported; 91/874 and others; 24/4/92), in which he said: I do not see the Industrial Court's role as different from that of the former Industrial Commission in the context of the legislation. It should not be regarded as a punitive Court but as a modern Court operating in the public interest to engender positive co-operation, in regard to the provision and maintenance of a safe working environment. … However, the question of a serious workplace accident, in my opinion, is not dependent upon the severity of the injury suffered, simpliciter, although this is necessarily a factor to be taken into account in assessing the offence. Another factor which is relevant is the nature of the remedial action taken by the employer to remedy the danger and the company's commitment to the implementation and continuation of workplace safety practices. This involves attention to both short-term protection and longer term planning involving redesign and reconstruction of work processes. 67 There is, of course, a place for the formal expression of contrition in proceedings. However, it is the actions taken by an employer that give substance to that formal expression. 68 In considering mitigation, I take into account the following evidence of Ms Davies: Following the accident, Hayden was immediately rushed into hospital. The Company maintained Hayden's full pay whilst he was off work and until his insurer took over payments to him. Siew Ping Tan, the Managing Director, and I visited Hayden every evening in Hospital and endeavoured to comfort his family. Whilst it was only a small thing, on many occasions we took food to his family who were understandably quite distressed. Tixana offered counselling to Hayden's family. Tixana also provided such counselling to all employees of Tixana. I, on behalf of the company, told both Hayden's family and all our employees that follow-up counselling, paid for by the company, was available to them. After approximately 3 months Hayden returned to work on light duties. He remained in our employ for a further 6 months. 69 The assistance rendered to the injured worker and to his family as described earlier was not simply the proper but impersonal assistance of the company. Company officers were personally involved on a continuing basis. The company's concern also extended to all other employees, not only to them as employees (reinforcement retraining) but to them as individuals (counselling offered). 70 In assessing the appropriate penalty the Court has taken into account the defendant's good industrial record and the nature of its business; its early plea of guilty; its contrition and remorse expressed in its words, and more importantly, through its actions in the care it extended to its injured worker and his family and its care for other employees with on-going counselling. There was full co-operation with the WorkCover Authority in its investigation of the accident. The defendant's former very general approach to safety has been given structure following the implementation of recommendations made as a consequence of the safety audit and the machine safety review commissioned by the defendant. The defendant has attained Hazard Analysis of Central Control Points (HACCP) approval, that being a quality assurance standard specifically created for the food industry (the most recent audit was successfully completed in March 2000). The level of supervision has increased dramatically from the previous one supervisor of 25 employees, to five supervisors for 25 employees. The factory was closed for one day to enable retraining to take place. 71 It is a good industrial citizen, as already noted. 72 The defendant has been in operation as a local manufacturer and later, exporter, for more than 35 years, its business, since the time it was commenced by three first generation Chinese people, being the preparation of tofu, soya snacks, sauces and related products. It employs 35 people in its operations, 25 of whom work in its manufacturing section. Its multi-cultural workforce includes Vietnamese, Maori, Chinese together with employees from a number of other backgrounds. 73 In relation to the quantum of any fine to be imposed, Mr Newall advised that while the defendant is not impecunious, it is not BHP. 74 On the points of a defendant's ability to pay any fine and the Court's discretion in determining the amount of a fine, the prosecutor did not make specific submissions but referred to s6 of the Fines Act 1996 and principles adverted to in Rahme [(1989) 43 A Crim R 81 at 86 - 87] and Sgrio [(1989) 40 A Crim R 197 at 201] that take account of an offender's financial means and capacity to pay the amount otherwise determined as being appropriate. 75 Part of the prosecutor's submissions was made on the basis of what, on further investigation, was an incorrect Agreed Statement of Facts, and, in particular, on a very serious element of the offence viz. that the chute guard which normally rested over the cutting trough of the extruder machine had been taken off. 76 Involving as it does a risk arising from unguarded machinery, the case is one in which the imposition of penalty should take into account both general and specific deterrence. In relation to the latter, I have already set out the measures taken by the defendant to avoid a repetition of this accident, and the commissioning by it of a full safety audit, the recommendations made as an outcome of that audit to modifications having already been implemented by September 1998. 77 In view of all the circumstances I find that this offence falls towards the lower end of the middle range of seriousness. 78 The defendant has no prior convictions. As at the date of the incident, the maximum fine available to be imposed was $550,000. 79 There is one charge in this prosecution, that charge being particularised in four aspects. The most serious of those particulars are those set out in para 5(iii) dealing with the failure to ensure adequate guarding of the dough extruder machine. Insofar as any descending order of risk is concerned I next place that set out in para 5(ii), failure to provide and maintain a safe system of work, next, with the matters in para 5(i) and para 5(iv) really ancillary to para 5 (ii). 80 The principle of totality was considered by Street CJ in R v Holden; R v Johnston (Holden) ([1983] 3 NSWLR 245 at 260): The learned sentencing judge properly recognised that what has been called the principle of totality necessitated some telescoping of the individual terms. The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, is any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straight forward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order. 81 In applying the guideline set out earlier I state formally that I accept that the defendant pleaded guilty at the earliest possible opportunity in connection with these proceedings and is entitled therefore to the full discount of 25 per cent (see WorkCover Authority of New South Wales (Inspector Shepherd) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (Wright J, President; 99/3369; 6/10/00) ). I have decided that I should not make any discount of that percentage because of the further court time involved in clarifying the Agreed Statement of Facts, in that the mistaken "agreement" was mutual. 82 On the basis of the principle of totality and the differing emphasis I indicate I have placed on the risks embodied in the four particulars, I am of the view that the appropriate penalty in this case if $185,000. 83 Taking into account the early plea and the other factors in mitigation considered above, I apply a total discount of 35 per cent to that amount. 84 I find the offence proven and enter a verdict of guilty against the defendant accordingly. I order the defendant be convicted of the offence charged and that it pay a fine of $120,250 with a moiety to the prosecutor. 85 The Court is to be advised within 7 days if the parties are unable to agree as to costs. ________________________

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