WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance

PROSECUTOR Ms P E McDonald of counsel Solicitor: Ms M Lagana WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC Solicitor: Mr G Phillips Carroll & O'Dea

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

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN FINLAY McMARTIN) v TRANSFIELD PTY LIMITED, t/as TRANSFIELD MAINTENANCE

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. Matter No IRC 4587 of 1999

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEVEN FINLAY McMARTIN) v TRANSFIELD PTY LIMITED, t/as TRANSFIELD MAINTENANCE

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983.

JUDGMENT [2001] NSWIRComm 289 1 The Court has before it two prosecutions of Transfield Pty Limited, t/as Transfield Maintenance by Steven Finlay McMartin, as an inspector of the WorkCover Authority of New South Wales, for breaches of the Occupational Health and Safety Act 1983 in relation to an incident occurring on 25 March 1998 at the Newcastle steelworks. The defendant was performing the maintenance of steelmaking ladles, under contract to The Broken Hill Proprietary Company Limited, t/as Rod, Bar & Wire (BHP) as the operator of the steelworks and, for that purpose, was using its own employees and also persons employed by a labour hire company, Readiskill Pty Limited. Hence, one charge (Matter No IRC 4586 of 1999) was under s 16(1) of the Occupational Health and Safety Act and the other charge (Matter No IRC 4587 of 1999) was under s 15(1) of that statute.

2 Sections 15(1) and 16(1) relevantly provide : 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

3 Each of the initiating summonses, in their amended form, alleged that the defendant failed to comply with the respective statutory duties on the date and at the place specified. The particulars of each charge were in identical terms, as follows : a) The defendant failed to provide or maintain systems of work, for the maintenance of the Steelmaking Ladle No 1, that were safe and without risks to health in that it failed to: (i) Utilise forced ventilation inside the ladle, either above the top work platform or between it and the lower platform, capable of ensuring that the concentration of LP gas sourced from gas hoses and cutting equipment remained less than the flammable range.

(ii) Utilise an air monitoring system to identify LP gas concentrations inside the ladle.

4 As a result of the said failures, the summonses alleged that specified persons were injured, namely, Andrew Scott Swan who was an employee of Readiskill and Mark Boyce who was employed by the defendant.

5 The summonses were filed on 27 August 1999 and, after some preliminary proceedings, the defendant pleaded not guilty on 27 March 2000. A charge under s 16(1) of the Occupational Health and Safety Act in relation to the same incident on 25 March 1998 at the Newcastle steelworks was made against BHP which pleaded guilty; on 29 November 2000 I gave judgment convicting it of the offence and imposed a fine of $175,000: see WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd, t/as Rod, Bar & Wire (2000) 101 IR 318. The charges against the present defendant proceeded as a defended hearing for five days on 4, 5, 6, 7 and 12 September 2000 and, as the matters were not completed a further period of five days was then fixed for 28, 29, 30 and 31 May and 1 June 2001. However, during the hearing on 28 May 2001 prior to the completion of the prosecutor's case I was informed the defendant had changed its plea to guilty to each charge. By arrangement with the parties, I heard the question of penalty on 31 May 2001. A statement of agreed facts was admitted into evidence.

6 As I have said, the defendant had a contract (known as the "Alliance Contract") with BHP to perform certain maintenance work at the steelworks and, on the subject occasion, it was performing maintenance work on the Steelmaking Ladle No 1. For that purpose, as the agreed facts disclosed, Mr Boyce and Mr Swan were boilermakers who commenced to repair the rim of the ladle at about 4.00 pm on 25 March 1998. The ladle repair involved removal of steel and slag from the lip of the ladle, replacement of any damaged brick-band segments around the top of the ladle and replacement of all bolts on the brick-band segments; the work had to be performed from within the ladle, access to the rim being facilitated by the placement of one platform on top of another resulting in a work platform 1230 mm from the top of the ladle. The top work platform consisted of four steel channel legs supporting a 10 mm thick circular steel plate floor weighing a total of 1080 kgs. Also located in the ladle on the work platform was a steel parts tub measuring 1420 mm long, 950 mm wide and 640 mm high. The method used by Mr Boyce and Mr Swan to remove the steel and slag was by oxy/propane cutting torches and was planned to take about five hours. Mr Boyce cut away the steel and slag from the ladle lip while Mr Swan replaced the bolts in the brick-bank segments using a ratchet gun, a spanner and small oxy/propane equipment. As the work was so proceeding, at about 9.50 pm on 25 March 1998 an explosion occurred within the ladle caused by the ignition of LP gas that had accumulated inside the ladle while it was being repaired. Mr Swan thereby sustained burns to his face, head and right forearm, cuts to the back of his head, a severed muscle within his right knee, a fractured right ankle and severe bruising of his tailbone and shoulder; Mr Boyce sustained cuts and abrasions to the left side of his body and pulled ligaments.

7 The cutting equipment being used comprised two sets, known respectively as Cutting Set A (two 5 mm inside diameter hoses connected to a 520 mm long multi-purpose cutting torch fitted with an oxy/LPG cutting nozzle) and Cutting Set B (two 10 mm inside diameter hoses connected to a 900 mm long multi-purpose blowpipe fitted with an oxy/LPG gouging nozzle), which were connected to the regulator outlets of BHP's piped gas supply located on the mezzanine floor level above the ladle. Cutting Set A was the property of the defendant and Cutting Set B was owned by BHP.

8 The immediate events leading to the incident, the incident itself and its aftermath were set out in the statement of agreed facts as follows : 15. At about 9.30 pm on the day of the accident Swan and Boyce stopped work to have a break. Swan and Boyce gave evidence in the proceedings that they placed the cutting torches over the rim of the ladle and left the work site to obtain a drink. Part of the two sets of hoses remained inside the vessel. Neither Boyce nor Swan isolated the oxy/propane gas supplies to the cutting torches at the regulator outlets.

At the time Swan and Boyce left the work site to have a break: a) the valves at the regulator outlets were not closed; and b) the gas in the hoses was not purged.

At 9.50 pm they resumed work. Boyce placed a segment of brick band on top of the tub, situated within the ladle, and lit the cutting torch to heat it. In the proceedings Boyce said: "I turned on the fuel gas and then I had lit the flame and I put the oxygen in ... and then I started to cut ... that is when the explosion occurred."

The accumulation of LPG/air mixture within the ladle ignited, resulting in an explosion. The explosion forced the top working platform within the ladle 2400 millimetres upwards, striking the underside of a fixed handrail on the mezzanine floor bending it 200 millimetres upwards. The platform then fell back into the ladle and wedged itself at an angle of approximately 45 degrees. Boyce was catapulted over the side of the ladle, but he managed to grab the side and climb back in. Swan landed on the inclined floor of the work platform striking the back of his head on the cleat of the brick band segment and was trapped at the neck by the portable aluminium access ladder that came down upon him.

Emergency services arrived a short time later. Approximately 20 minutes after the explosion Swan was extricated from the ladle and both he and Boyce were conveyed to hospital for treatment. Both men have since resumed work on normal duties.

One of the four steel channel legs of the top work platform was severed. A number of refractory bricks were damaged. The access platform handrail was significantly deformed by the impact with the platform as was the portable aluminium ladder used for access to the ladle from the mezzanine floor.

An oxygen hose being part of Cutting Set A was severed as a result of the steel parts tub landing on it following the explosion.

At the time of the accident, both Swan and Boyce were wearing personal protective equipment suitable for their respective tasks.

9 On 26 March 1998, BHP engaged E & K Repair Services Pty Limited to inspect and test the four hoses (called respectively hoses A, B, C and D) and Cutters A and B used by Mr Swan and Mr Boyce to repair the ladle. The report from E & K Repair Services indicated the equipment was tested by it on 28 March 1998 and, after setting out its detailed findings, summarised the condition of the hoses and cutters in the following way : Hoses A, B, C and D all have leaks with Hoses C and D having severe leakage on the cutter end and Hose C on both ends. Hoses B, C and D are in poor condition with numerous obvious physical defects and Hose B not suitable for use with natural gas or lpg or propane as it is an oxy-acetylene hose. The use of Cigweld hose fittings on non-Cigweld hose is also bad practice as different manufacturers have different standards on the o.d and i.d of their hoses and Cigweld will not guarantee their fittings in non-Cigweld hose as their fittings are manufactured solely to suit the inside and outside diameters of their own hoses.

Cutter A whilst itself not leaking has severe leaks where the flashback arrestors connect to the inlet connections of the cutter and being an acetylene cutter is not suitable for use with natural gas, lpg and propane as the mixers are different to accommodate for the different mixing properties between acetylene and natural gas, lpg and propane.

Cutter B has bad leakage from the rear plug and the fuel gas control valve when the valve is open and also leaks where the flashback arrestor connects to the oxy inlet connection.

10 The Alliance Contract under which the defendant performed the maintenance work to the steelmaking ladles contained a system to identify critical safety hazards and the precautions to be taken by workers against such hazards. That system involved as an important procedure the issue of individual job tickets by BHP to the defendant for each particular task to be performed. The job tickets were created electronically on BHP's computer system from information entered either by its employees or those of its contractors, such as the defendant, and dealt with the nature of the job and relevant safety precautions to be followed; after review by an authorised BHP representative, the job ticket was then issued to the contractor concerned. The job ticket system was designed to encompass the entire scope of work to be performed, and included a work method statement, tools and equipment, drawing references and critical safety hazards. In the present case, the agreed facts showed a job ticket was issued for the ladle repairs after being prepared by the defendant's Project Co-ordinator, Geoffrey Gordon, and reviewed and altered by BHP's Maintenance Supervisor, David Dowman. Specifically, the statement of agreed facts indicated that a job ticket was created and issued for the repairs to the ladle concerned but identified the deficiencies which existed in the following way: 28. The job ticket was created by cutting and pasting sections of an existing job ticket involving maintenance for a freight lift. The maintenance of the freight lift had involved the entering of a lift well area which is a designated confined space. Clause 8.1 of that job ticket identified hazards associated with the risk of gas accumulation in the lift well area. That part of Clause 8.1 as used in the job ticket for the work to be performed by Swan and Boyce was blacked out by Dowman. Before blacking out the section Dowman discussed it with Gordon and said: "Geoff I think you made a stuff-up there is a bit here that does not apply and he agreed and before we both signed it, it was blacked out".

Dowman deleted that part of the clause because Boyce and Swan were not working in the lift well area or in what BHP had designated as a confined space. In a record of interview with the Prosecutor on 30 July 1998 Dowman stated that, " Technically I should of deleted the whole clause because we did not intend working below the top platform level."

In the proceedings Gordon when asked if he had any discussions with Dowman about the blacked out section said: "I think when he read that, I can't be a 100 percent sure, it's a long time ago, but I think that area there had the first couple of lines down was some other area of - the lift well area which wasn't specific to a ladle that's why that is blacked out and we talked about that".

Before any work on the ladle could be commenced, the job ticket had to be signed [by] a representative of Transfield and BHP.

Clause 8.8 of the job ticket was not complied with by Swan and Boyce. The hoses connected to the cutting equipment were left inside the ladle and the oxy and propane valves were not closed at the regular outlets.

Gordon and Dowman made no provision in the Job Ticket to: a) utilise forced ventilation inside the ladle, either above the top work platform or between it and the lower platform. b) utilise an air monitoring system to identify LP gas concentrations inside the ladle.

The ladle was a "confined space" as defined by Australian Standard 2865 of 1986 at Clause 1.4.2. A copy of the Standard is Exhibit 5 in the proceedings.

The works undertaken by Swan and Boyce was "hot work" as defined at Clause 1.4.5 of the same Standard.

Dowman and Gordon had received training in relation to Australian Standard 2865 of 1986.

The ladle was a "hazardous area" as defined by Australian Standard 1674.1 of 1997 "Safety in welding and allied processes" at Clause 1.3.2. A copy of the Standard is Exhibit 4 in the proceedings. Clause 3.3 describes what precautions shall be taken prior to the commencement of hot work in any hazardous area.

There was no forced air ventilation for the ladle.

It was a still night. There was little or no natural ventilation.

Neither Boyce nor Swan smelt or otherwise noticed gas prior to the explosion.

No air monitoring equipment was used to identify LP gas concentrations in the ladle.

The solid bricklayer platform formed gas collection spaces.

Prior to the accident, Boyce only carried out a visual inspection of the small cutter hoses. Swan could not remember carrying out an inspection of the hoses.

11 Following the incident, BHP and the defendant conducted a joint investigation into its causes and the consequent report made various recommendations including -

· implementation of the ladle ventilation system capable of ensuring that an explosive concentration of LPG sourced from gas lines/tools, could not occur; and

· investigation into the replacement of LPG with natural gas as the fuel source.

12 BHP thereupon implemented the following remedial action - (a) forced air ventilation and the use of natural gas, as opposed to LPG, was required when carrying out similar maintenance work; (b) open mesh was installed on the platform floor; (c) new job procedures required hoses to be disconnected from the regulator, if not required for more than half an hour; and (d) safety alerts were issued to contractors and other BHP plants.

13 The agreed facts showed that as a result of the joint investigation the defendant implemented the following remedial action - (a) daily inspection and handling sheets for cutting equipment were produced; (b) quarterly inspection of hoses and gas equipment was adopted and a comprehensive register established; (c) a BOC representative was engaged to carry out specific training on the safe and correct use of oxy/acetylene equipment; (d) several tool box meetings were convened to reinforce safety expectations; (e) supervisors received additional training by its Occupational Health and Safety Co-ordinator; (f) the facts surrounding the accident were communicated to all its employees through its corporate newsletter; and (g) a mini-handbook was produced for all employees to assist them when carrying out personal safety checks of work equipment, environment and safe working procedures.

14 Having reviewed the agreed facts, and also in light of the evidence earlier admitted in the proceedings as led by the prosecutor, I am satisfied the offences have been proven and the pleas of guilty by the defendant were properly made. The essential elements of each charge were admitted by the defendant and it is only appropriate to enter a verdict accordingly. It remains to deal with the question of penalty. In that respect, it was common ground, correctly in my view, that the maximum penalty for each offence at the time committed, and taking into account the fact of the defendant's prior convictions, was $825,000.

15 Ms P E McDonald, counsel for the prosecutor, provided a record of the defendant's prior convictions for offences against occupational health and safety legislation. It covered the period from 7 September 1962 to 28 November 1997 and noted 21 convictions which incurred fines ranging from $20 to $130,000. Relevant to a consideration of the impact for present purposes of the defendant's prior record was how that record was viewed by the Court in sentencing it for the two most recent serious breaches of the Occupational Health and Safety Act. In WorkCover Authority of New South Wales (Inspector Jones) v Transfield Construction Pty Ltd (unreported, Bauer J, CT96/1217, 28 November 1997) the defendant, in its former name, was fined $70,000 where the maximum was $250,000 for an offence against s 15(1) committed during the erection of storage tanks for a water reticulation system at Appin; an employee was fatally injured and another received severe head injuries. Bauer J described the nature of the offence in terms that the fabrication of the tanks "was never supervised" and added that although the potential for serious injury was manifest "no systems were in place at that time which required the assessment of the conditions under which the plates were placed" (at p 11). Nevertheless, his Honour made the following observation (at p 10) : Material presented on behalf of the company by counsel leads to the conclusion that the defendant in this matter is a company which has in recent times, particularly since the reorganisation of the company into two groups, accepted and adopted responsibility for safe working practices and engaged in the implementation of codes of conduct and practice aimed at ensuring a safe work place. The material suggests that Transfield was a company which recognised the responsibility of large and successful companies to lead the way in the implementation of safe working practices. I accept the submissions of counsel that, having regard to the size and nature of the organisation and the large range of industrial activities in which it has been involved the record of the company in the past has to be viewed as a reasonable one.

16 In WorkCover Authority of New South Wales (Inspector Dubois) v Transfield Pty Ltd [2000] NSWIRComm 204 Kavanagh J, where the maximum fine was $825,000, fined the defendant an amount of $130,000 for a breach of s 15(1) of the Occupational Health and Safety Act following an accident at the North Side Storage Tunnel Project at Manly when a worker suffered fatal injuries during tunnel excavation work. Her Honour found the offence "most serious" and added as to the defendant's prior convictions in the context of its corporate character (at pp 12-13 in pars [20]-[23]) : [20] The character of a defendant, including the character of a corporate defendant, can be given a consideration in the determination of penalty ... Evidence reveals there was in this corporation, prior to this accident, a significant commitment to occupational health and safety awareness. As this Court has often determined, this commitment must not only be a general commitment to safe working but that commitment must be transposed to site related safety procedures, task specific. ...

[21] ... The weight of a corporate reputation, such as that held by Transfield, it is hoped will encourage support for engineering refinements to the machine.

[22] There is before the court significant evidence this company is a corporate citizen who specifically and financially supports community based projects and events. The company in New South Wales has a fine corporate reputation as a contributing corporate citizen.

[23] The court, as to the defendant company's industrial record notes a number of convictions for minor breaches of the Act, leading to the two serious convictions and this most dreadful of fatalities. Industrial citizenship must be weighed in the context this company has some 8000 workers throughout Australia, Asia and New Zealand. It operates in heavy industry building projects such as the Sydney Harbour Tunnel, the New South Wales Airport Railway Link and the site of this accident, the Northside Storage Tunnel. On this site there were 80 persons at the time and now 120 persons. As in this case, much work is performed in dangerous underground conditions ...

17 Counsel for the defendant, Mr B D Hodgkinson (now of senior counsel), in mitigation of penalty relied upon an affidavit sworn on 31 May 2001 by Michael Kiprioti as the defendant's Safety Manager for New South Wales since 1994. Mr Kiprioti said the defendant employed about 1,000 persons throughout Australia, Asia and New Zealand (it employed 8,000 persons until October 2000 when a restructuring transferred about 7,000 of them to another part of the defendant's corporate group) and was a leading developer, owner, operator and provider of engineering and construction services to the infrastructure, power, process, building and defence industries. It had been engaged in recent times in this State in major projects, including the Sydney Harbour Tunnel, Airport Rail Link and the North Side Storage Tunnel. However, it was noted that since October 2000 the defendant no longer performed as part of its core business the type of maintenance activities it carried out at the Newcastle steelworks the subject of the present matters.

18 Mr Kiprioti emphasised the defendant's comprehensive communication and information systems as to occupational health and safety, which included primary attention to the subject at board and other executive meetings; directors, chief executive officers and general managers participated in regular safety audits across the defendant's operations. Nevertheless, despite the allocation of significant resources to workplace safety a number of incidents still occurred of which the present incident was an example. Consequently, and consistent with the defendant's commitment to safety, Mr Kiprioti said that in mid-1999 the defendant commissioned a major external report from Risk Control Rating Systems Pty Limited as part of a company-wide review, with initial focus on operations in New South Wales, of whether the safety systems were appropriate, relevant and current. In its Occupational Health and Safety Audit report dated October 1999, Risk Control Rating Systems summarised the then current status of the defendant's occupational health and safety management in the following way:

· The corporate approach to OHS management has not been in place for a sufficient period to influence existing "on the ground" practices to any large extent. · There is a marked increase in New South Wales Government initiatives in the construction industry owing to poor OHS performance in the industry revealed by State statistics. · There is a rapid development in the expectations of New South Wales courts for employers who provide contract labour to operate or maintain a third party's site. · Alliancing and joint venturing work create slightly different OHS requirements and these need to be specifically addressed. · Soon it will be possible to obtain certification of the occupational health and safety management system (OHSMS); Transfield OHSMS definition documents need to be designed to facilitate this process. · All organisations are becoming aware of the need to streamline and integrate quality management systems, environment management systems and OHS management systems; developed OHSMS definition documents should make implementation as easy as possible. · The opportunity to design the OHSMS around the processes of risk management would lead to improved awareness and control of costs from all areas of risk.

19 The report, after reviewing the detailed findings, made a series of recommendations and action steps to improve the position, namely - (1) Enhancement of board and senior management roles in occupational health, safety and rehabilitation. (2) Development of middle manager and supervisory abilities to manage to modern occupational health, safety and rehabilitation standards. (3) Development of specific requirements for management accountability for occupational health, safety and rehabilitation programme implementation and results. (4) Development of quality, health, safety and environment capabilities. (5) Improvements to occupational health and safety management system. (6) Development of risk management practices. (7) Provision of a specialist perspective on compensation, rehabilitation and prosecution management.

20 Mr Kiprioti deposed that the defendant had accepted the various recommendations made as a result of the audit and the implementation of them was substantially complete; those recommendations of an on-going nature would receive continuing attention. In recording that the defendant's safety system had achieved accreditation from a number of government agencies throughout Australia, Mr Kiprioti said the defendant had gained a self-insurer's licence for workers' compensation in this State which required the WorkCover Authority to conduct a comprehensive safety audit. In that respect, as Mr Kiprioti noted, the defendant in September 1999 received from the National Safety Council of Australia an Achievement Award of Safety Excellence in the category of Company-wide Occupational Health and Safety System or Specific Projects.

21 As to the defendant's role as a corporate citizen, Mr Kiprioti's affidavit stated: 5. I have made enquiries within the Company regarding the various activities that Transfield is involved in as well as the various good causes that Transfield supports in the community. As a result of these enquiries and in conjunction with my own knowledge, I can say that Transfield has contributed to or been involved in the various matters which are set out below.

The longstanding Chairman of the Transfield Board, Franco Belgiorno-Nettis AC, CBE has long been involved as the Chairman of the Board of Governors of the Sydney Maritime Museum. For more than a decade, the Company has supported the restoration of the barque James Craig . The Transfield support in relation to this community project exceeds $500,000.

Transfield has also maintained support for Engineering Excellence through its ongoing contributions to universities and several states, study groups award and seminars.

For many years, Transfield has been a strong supporter of the Arts. Since the early 1960s, when it established the Transfield Art prize and then in 1973 conceived and supported the establishment of the Biennale of Sydney, now ranking with the most important contemporary art events in the world, the Company has had an ongoing commitment to the Arts in Australia. The current commitment for each Biennale Exhibition is in excess of $350,000.

Other ongoing support in the visual arts includes $150,000 for the New South Wales Department of Education for the promotion of Art Express, supporting membership to the Museum of Contemporary Art, the Art Gallery of New South Wales and the provision of materials and fabrication facilities to art schools artists and sculptors. Transfield has been a prominent supporter of all national and state art galleries.

Transfield's Managing Director is the Chairman of the Australian Chamber Orchestra which is also supported financially by the Company. Donations have also been given to the Sydney Symphony Orchestra, the Australian Opera, the Victorian Opera to name a few consistent with Transfield's support of the Arts.

22 Mr Kiprioti's evidence was not challenged by any cross-examination and I accept the evidence so given.

23 A comprehensive written submission on sentence was helpfully provided by Ms McDonald. Counsel referred to the circumstances of this case by reference to the agreed facts and to certain pieces of the evidence earlier given as support for the proposition that the culpability of the defendant was at the serious level because of the obvious risks involved, obligation on the defendant to positively inform itself of a safe working system, the degree of seriousness of the breaches and availability of simple remedial steps. In the result, submitted counsel, a substantial penalty should be imposed having in mind the maximum penalty prescribed, the need for deterrence and the nature and quality of the offences. "The gravity of the potential risk flowing from the breach was extreme and self evident", Ms McDonald said, which was "reflected in the explosion in which Mr Boyce was catapulted over the side of the ladle and Mr Swan landed on the inclined floor of the work platform and the injuries suffered by Mr Boyce and Mr Swan". The seriousness of the offences was demonstrated also, as counsel submitted, by the simple and straightforward steps the defendant could have implemented to remedy the defects in the work system as to monitoring the gas concentrations inside the ladle and using forced ventilation to ensure the concentration of LP gas remained less than the flammable range. Although it was apparent that BHP had similar responsibilities, nevertheless the defendant had them as well but relevantly failed to ensure the workers' safety during the performance of the repair work. In essence as to the essential elements of the charges here, Ms McDonald succinctly put : The Defendant did not identify the risk of gas entrapment created by the design of the ladle and the use of the solid work platforms within it and did not require use of forced ventilation or air monitoring to prevent a build up of flammable gases within the confines of the ladle.

24 Ms McDonald addressed too on the maximum penalty, relevant sentencing factors, general and specific deterrence, the totality principle and parity in sentencing. Turning to the subjective considerations, Ms McDonald submitted that as the defendant did not enter a plea of guilty until the sixth day of the contested hearing then "it should not receive a discount for the plea of guilty as only minimal utilitarian advantage had been gained from the entry of the plea of guilty"; alternatively, a "minimum discount" should apply. As to the prior convictions of the defendant, counsel submitted that "the objective seriousness of the offence is aggravated by the previous convictions ... The defendant has had many previous convictions under the Act". In tempering any penalty otherwise thought appropriate by reason of safety precautions taken by the defendant and the remedial steps put in place after the incident, Ms McDonald relied upon WorkCover Authority of New South Wales (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, Maidment J, CT93/1062, 26 November 1993) in which his Honour said (at p 7) : Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities.

25 Mr Hodgkinson conveniently provided summary references to the evidence in the proceedings, during its contested phase, relevant to the charges in their amended form and to which the defendant pleaded guilty. From that material, including what was contained in the agreed facts, counsel made the following basic submission : In terms of the culpability of my client, it had taken over a system which had been used and operated by BHP which itself thought and asserted it to be a safe system for the performance of this work. I have referred to the various references that support that. The work was performed at BHP's direction. My friend has referred to the fact that there was a requirement for Transfield to also sign the job ticket. The evidence in respect of that is that the job ticket was utilised for two purposes: one to define the work and the equipment needed for the work and the hazards associated with the work. Secondly, as a commercial document upon which Transfield would claim payment and BHP would make payment.

BHP had the capacity to stop the work and BHP could have changed the method of the work and Mr Bates had authority to change the job ticket or stop the work. The evidence is that Transfield did not have the authority to change the work ticket without the concurrence of BHP but BHP, on the other hand, could do it without the concurrence of Transfield.

That is the point of liability accepted by entering the plea - we accept that even though it was BHP's system and having regard to the authorities - we could have done something, [about] the ventilating system and [about] the monitoring system and on that basis we come to court and say we are liable. It does not, however, distance it from the facts in terms of comparability.

The BHP system developed as a safe system to identify the risks and hazards and to accommodate those risks and hazards in the performance of this very work. My client by accepting the job ticket system accepted that from BHP as being a job that had been assessed for safe working circumstances and in which the hazards had been identified appropriately by either provision of the equipment or the like. In other words, as I understood the submission, whilst the system of work utilised to repair the ladle operated unsafely, the culpability for what occurred in a comparative sense was lower for the defendant than what it was for BHP. Indeed, Mr Hodgkinson suggested "that the culpability of BHP in these circumstances is considerably more than that of Transfield".

26 Also, in terms of comparability with BHP, counsel emphasised that the charge against BHP was in much wider terms than that against the present defendant in that it alleged additional elements whereby BHP failed to isolate the LP gas supply at the regulator outlet, purge the hoses of LP gas and oxygen, issue job tickets only by accredited work supervisors and provide and maintain oxy/propane cutting equipment that was safe and without risks to health. In a real sense, then, on counsel's submission, the defendant assumed and operated the system devised and laid down by BHP but where, in the narrower sense, the defendant was culpable because it failed in the performance of the work to monitor the LP gas concentrations inside the ladle and to utilise a forced ventilation system to minimise the concentration of LP gas.

27 In the sentencing process, it was fundamental to Mr Hodgkinson's submissions that attention had to be directed to the essential elements of the charges to which the defendant eventually pleaded guilty and that was so in two respects. First, in applying the principle of totality, as formulated in Pearce v The Queen (1998) 194 CLR 610, the essential elements in both the s 15(1) and s 16(1) charges were common and, as counsel said, "there is no element that exists in respect of one of these charges that does not exist in respect of the other"; it therefore followed in the proper application of the totality principle that a single penalty only for both charges should be imposed as if it were a single offence: see Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at pp 192-197 (particularly in pars [29] and [30]).

28 The second respect concerning the essential elements of the charges related to the effect of the defendant's pleas of guilty and any consequent discount therefor. Contrary to the submissions for the prosecutor that no or only a minimum discount be allowed because of the lateness of the pleas, Mr Hodgkinson said the defendant was entitled to receive a discount in terms of ordinary principle as the pleas were entered as early as possible, that is, as soon as the amended summonses were filed during the proceedings. Importantly, the amendments limited the essential particulars to the failures in respect of an air monitoring system and forced ventilation but excluded those elements originally included relating to isolation of the LP gas supply at the regulator outlet, purging the hoses of LP gas and oxygen, provision and maintenance of oxy/propane cutting equipment and a system of work for the inspection of cutting torches and hoses prior to use. As to those now excluded aspects, counsel emphasised that the allegations when initially made were resisted by the defendant, who pleaded not guilty, and for that reason the hearing proceeded on a contested basis until the summonses were amended; the pleas were then changed to guilty.

29 In relation to the evidence of Mr Kiprioti, Mr Hodgkinson submitted this was not a case in which there was any disclosed need for a penalty to recognise specific deterrence of the defendant and the evidence would lead to the satisfaction, as counsel said, that the defendant "demonstrated clearly ... that they accept and embrace their occupational health and safety obligations and seek to discharge them in a broad and active way for the future which is, indeed, a very significant element in the consideration of specific deterrence".

30 Finally in mitigation of penalty, Mr Hodgkinson submitted : At the end of the day there are many factors which are to be weighed in favour of the defendant in these proceedings. The fact that the prosecutor altered its charge and a plea was entered to it was one of them. The fact that the system was owned, devised, operated and maintained and insisted upon by BHP is another. The fact that there was no recognition prior to this circumstance where there were relevantly qualified and trained personnel involved in the very process of risk and hazard assessment is a further matter going in favour of my client when one considers its level of culpability ...

... the case, it was not fought up to the point that it was fought on the basis that there was this huge fight about ventilation and monitoring equipment. It was fought on the factual circumstances surrounding matters going to the other particulars. That has then been altered by the circumstances that the prosecutor seeks to amend and we say we plead to that amended summons. ... If my client had proceeded to contest the proceedings beyond the opportunity that was given when the prosecutor sought to amend its summons, then it would bear the brunt of the totality of the proceedings but it did not. As support for that latter proposition, which essentially related to the pleas of guilty to the amended summonses, Mr Hodgkinson relied upon two decisions of the Supreme Court in R v Ryan [2000] NSWSC 724 in pars [1] and [27] per Adams J and R v McNellee, Tucker and Dalley [2000] NSWSC 1154 in pars [19] and [20] per Bell J.

31 In consideration of an appropriate sentence, I have been guided in this matter, consistent with the approach here by both counsel, on what was concluded by me in imposing sentence against BHP as to the charge against it concerning this same incident on 25 March 1998 at the Newcastle steelworks. Given, as has been noted, the wider range of the elements charged in that BHP matter, it is nevertheless helpful to repeat the observations made by me as to the objective seriousness of that offence, as follows (101 IR at pp 329-330 in pars [23]-[26]) : [23] The particular detriment to safety giving rise to the offence here was, in my view of the facts and as consistent with [senior counsel's] analysis, the defendant's failure to fully appreciate the prudence in establishing measures to support or supplement the primary steps laid down in what was thought to be an otherwise safe work system. This case, I think, emphasises the duty cast on an employer in absolute terms to ensure workplace safety in the sense of guaranteeing, securing or making certain ... Also, it emphasises the need for an employer to be pro-active in fully informing itself so as to ensure a safe work environment. ...

[24] In such a situation, the question is what is the true degree of culpability. [Senior counsel for the defendant] put it at the lower end of the spectrum as "a comprehensive system for the identification of risks and appropriate precautionary action to be taken" and where "the defendant was entitled to assume that the procedure which had been laid down would be followed". On the other hand, and in light of the defendant's admitted knowledge of the possibility of explosion from the use of oxy-propane equipment, [counsel for the prosecutor] called for imposition of "a significant monetary penalty" in circumstances where "the subject incident arose out of a known and perceived danger" and "the failing in the defendant's systems of work … presented a grave risk of the ultimate injury, namely death". It is, of course, well settled that the consequences of an accident, as resulting in serious injury or even death, does not, of itself, dictate the seriousness of the offence although the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the culpability of the defendant ... I accept [counsel for the prosecutor's] submission that the failure of the defendant's system of work subjected the two workers to an explosion presenting a grave risk of the ultimate injury.

[25] In a very real way, [senior counsel] sought to reduce the culpability of the defendant by the failure of the two workers concerned in taking the break from work to turn off the gas at the regulator outlets and in not completely removing the cutting equipment from the ladle; senior counsel went so far as to submit that the defendant was entitled to assume that the procedure laid down would be followed. It is perhaps timely, therefore, to repeat the observation made by me in WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at p 135, as follows : "Inattention or mere inadvertence of an employee only serves to show the need for an employer in ensuring safety to be astute in meeting all reasonable contingencies. This concept, in my view, is the measure of the real culpability of the defendant in this case where almost a 'one-off' situation arose to be dealt with away from, as the evidence showed, the defendant's well and long-established procedures for the water testing of oxygen lances in a safe manner." I consider that comment to be directly applicable in this case and as illustrating the real measure of culpability.

[26] I conclude that the essential nature and quality of the subject offence, in all the circumstances, to be about one-third of what could be expected in the worst case. Penalty was then assessed by me with the following comment (101 IR at p 330 in par [29]) : In light of the maximum penalty available in the present case of $825,000, I assess the objective seriousness in an amount to the order of $275,000. Having regard to the early plea of guilty, I would allow a discount of 25 per cent and for the other subjective features mentioned I would allow a further reduction of 10 per cent. In the result, I consider an appropriate penalty in this case to be $175,000.

32 In my view, the above comments as to the nature of the offence committed by BHP are applicable with equal force to the present defendant - as Mr Hodgkinson conceded, liability was accepted where the defendant "could have done something, about the ventilating system and about the monitoring system". The fact the defendant did not do so, as the essential elements in the amended summonses alleged and like the failure found against BHP, demonstrated that the real culpability of the defendant here was its failure, firstly, to fully appreciate the foreseeable risk of explosion in the use of LP gas in the confined area of the steelmaking ladle and, secondly, to be prudent in providing a system to monitor gas levels with ventilation to protect against the accumulation to a dangerous level of any gas which might escape during the work. Put another way, I am of the view that the real vice of the defendant was its failure to be pro-active in taking appropriate steps to ensure the work environment for Mr Boyce and Mr Swan was safe.

33 Nevertheless, and although the nature of the failure found to have been committed by BHP was to a similar effect, it is necessary in determining the objective seriousness of the offence against the present defendant to assess the quality of its error; that requires attention to the circumstances of what occurred by reference to the essential elements of the offences for which the defendant was charged. It is in this aspect of the quality of the offences which, I have concluded, places the defendant at a lower level of seriousness than BHP. It is true, as Mr Hodgkinson submitted, that the system of work was essentially determined and directed by BHP, which had apparently utilised it uneventfully for some years, and the system of job tickets for the use of contractors containing all necessary information, including as to safety measures, was well established. Even so, the defendant had input into the job ticket process and work could not proceed until the defendant's supervisor accepted the job ticket. Therefore, I agree with Ms McDonald that the defendant did not merely inherit a particular system from BHP but had the ability, depending upon the particular job concerned, to obtain BHP's concurrence to an amendment of the job ticket for proper cause, such as a safety issue. However, in the overall operation of the job ticket system I am satisfied the primary decision-maker was BHP and not the defendant. That finding must sound in a lesser degree of culpability of the defendant for what occurred.

34 In comparing the position of the defendant against that of BHP, I consider the most significant measure to be the fewer number of essential elements as to which the respective charges were brought. For instance, the particulars of the s 15(1) charge against BHP stated (101 IR at pp 318-319 in par [1]) : a) The defendant failed to provide or maintain systems of work, for the maintenance of the Steelmaking Ladle No 1, that were safe and without risks to health, in that it failed to: (i) Utilise forced ventilation inside the ladle, either above the top work platform or between it and the lower platform, capable of ensuring that the concentration of LP gas sourced from gas hoses and cutting equipment remained less than the flammable range. (ii) Utilise an air monitoring system to identify LP gas concentrations inside the ladle. (iii) Isolate the LP gas supply at the regulator outlet when left unattended or not otherwise in use. (iv) Purge the hoses of LP gas and oxygen when left unattended or not otherwise in use. (v) Ensure that Job Tickets were only issued by Work Supervisors accredited in accordance with Standard Operating Procedure NSRM-SOP-07-16-03.

b) The defendant failed to provide or maintain oxy/propane cutting equipment, to wit, two 10 millimetre inside diameter hoses, one 900 millimetre long CIG Multi-purpose blowpipe and one Cigweld 48GB oxy/LP gas gouging nozzle, that was safe and without risks to health.

35 Each of the two charges against the defendant under s 15(1) and s 16(1) was limited to those particulars being identical to those against BHP in pars (a)(i) and (ii) above-mentioned. However, the defendant cannot in these proceedings be held liable for the elements in pars (a)(iii), (iv), (v) and (b). Having in mind the overall evidence, my assessment is that those excluded elements combined, particularly that element in par (b), represented a significantly higher degree of culpability than the elements in (a)(i) and (ii) as against the defendant here. This should in no way be seen as minimising the seriousness of the offences committed by the defendant. After all, it is demonstrably clear that the use of an air monitoring system to identify gas concentrations inside the ladle and a forced ventilation system to reduce gas levels below the flammable range would have, if put in place by the defendant, removed the subject detriment to safety, that is, the presence of a flammable accumulation of LP gas/oxygen within the ladle. On any view, I am satisfied that those failures by the defendant were of an extremely serious nature as manifested by the explosion and consequent injuries to Mr Boyce and Mr Swan. That they were not killed or more seriously injured was only fortuitous.

36 As alleviating the otherwise extremely serious nature of the offences, Mr Hodgkinson relied on the evidence, which I have accepted, of Mr Kiprioti concerning the defendant's status as a corporate citizen and its approach to occupational health and safety matters. Included in that evidence were details of the safety audit conducted in 1999 of the defendant's safety management system, together with the recommendations for improvements thereto; those recommendations have been implemented. Further as to matters subjective to the defendant, and as the statement of agreed facts noted, immediately following the subject incident the defendant joined with BHP to conduct an investigation and, in the result, various remedial steps were taken. It is apparent that the defendant exhibited a co-operative approach to the investigation by the WorkCover Authority of what occurred and was concerned to ensure appropriate corrective action was taken, including an overall review of its safety management system. I am able to say, as I was with the comparable situation of BHP (101 IR at p 330 in par [27]), that I am satisfied the factors subjective to the defendant "represented a responsible and contrite approach to workplace safety ... and for which some credit in further reduction of penalty should be allowed". As part of that process, however, the prior convictions of the defendant, particularly the two most recent instances where it was subject to fines of $70,000 and $130,000, must be viewed as somewhat negative factors. I nevertheless note in that respect the comment by Bauer J in Jones v Transfield Construction (at p 10) "that having regard to the size and nature of the organisation and the large range of industrial activities in which it has been involved the record of the company in the past has to be viewed as a reasonable one"; also, in Dubois v Transfield (in par [22]) it was remarked by Kavanagh J that the defendant "has a fine corporate reputation as a contributing corporate citizen". The evidence of Mr Kiprioti provided continuing support for those comments.

37 The defendant's pleas of guilty in mitigation of penalty gave rise to sharp differences between the parties. On the one hand, Ms McDonald said the circumstances in which they were given led to either no reduction or only a minimal amount; Mr Hodgkinson, on the other hand, submitted the pleas were given as early as possible, that is, on the prosecutor amending the charge so that full recognition should be allowed. The defendant was charged with offences under ss 15(1) and 16(1) of the Occupational Health and Safety Act, effectively that it failed to ensure the safety of Mr Boyce and Mr Swan by exposing them to risks in the various ways described in the essential particulars to the charges. The charges were sternly defended during the first six days of a defended hearing scheduled for a period of ten days, even to the point where Mr Hodgkinson made it plain at an early stage that a submission of no-case to answer may be put. As it happened, however, on the sixth day the prosecutor amended the charges so as to rely on two elements of relevant failure only, those related to an air monitoring system and forced ventilation, and abandoned those related to isolation of the LP gas supply at the regulator outlet, purging the hoses of LP gas and oxygen, provision and maintenance of oxy/propane cutting equipment and inspection of the cutting equipment prior to use. Mr Hodgkinson emphasised that much of the evidence in the case focussed upon those finally excluded elements, the real area where the case was fought, and the two elements remaining were not subject to much attention at all.

38 I do not accept Mr Hodgkinson's submission that the pleas were given at the first opportunity even though they were given when the charges were amended. And neither do I accept Ms McDonald's submission that the defendant "should not receive a discount for the plea of guilty as only minimal utilitarian advantage had been gained from the entry of the plea of guilty". I think the position is somewhere in between those extremes. The two elements eventually accepted by the defendant to establish its guilt, an air monitoring system and forced ventilation, were contained in the charges as originally laid and, in themselves, were even at that early stage sufficient to establish the charges and as to which the defendant could have made admissions but did not do so. It is perhaps relevant to point out that s 49A of the Occupational Health and Safety Act enables more than one contravention of s 15 or s 16 arising out of the same factual circumstances to be charged as a single offence in which case a single penalty only may be imposed in respect of more than one contravention of any such section so charged. Here, a single charge under s 15(1) and another under s 16(1) was brought and that was permitted by s 49A even though each single charge contained a number of elements any one of which was sufficient for the charge concerned to be proven. Therefore, in terms of the charges as brought, the particulars thereof, the length of the proceedings, the amendment of the charges on the sixth day of the hearing and the consequent pleas of guilty immediately the amendments were made result, in my opinion, in pleas of guilty for the purpose of reduction of sentence but in such a manner as not to be pleas entered as early as possible. Nevertheless, they were entered as soon as the amendments were made but where the hearing had been proceeding for six days with a further four days scheduled.

39 In the sentencing process, the present defendant is to be seen as a co-offender with BHP as to the subject incident so that it is appropriate, as acknowledged by both counsel, for the principle of parity to be applied. That principle was stated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at pp 301-303 thus : The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them ... . In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. ... the parity principle ... recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". ... notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. ...

... And, of course, it is necessary when applying the parity principle that like be compared with like. ...

40 In this case, as I have indicated earlier, I accept Mr Hodgkinson's submission that the culpability of the defendant was at a lesser level than that of BHP. I reached that view in light of the quality of seriousness of the defendant's failures and, importantly, the fewer number of essential elements in the respective charges brought. I will, therefore, apply the principle of parity with those views in mind to reflect the different degrees of culpability.

41 The defendant here, unlike BHP which was charged with one offence only under s 16(1), was charged with two offences: first, under s 15(1) in respect of its employee Mr Boyce; and, second, under s 16(1) in respect of Mr Swan who was an employee of Readiskill. The question then arising is the application of the totality principle. In Pearce (194 CLR at p 623), as relied upon by Mr Hodgkinson who emphasised the common elements in both charges, McHugh, Hayne and Callinan JJ stated the principle in the following way : To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (Emphasis added.)

42 The principle thus stated was applied by a Full Bench of this Court in the Crown (Department of Education and Training) v Keenan (105 IR at p 194 in par [30]) as to offences under occupational health and safety legislation and I too will do so. The issue is to what extent should the principle be applied in this case. The s 15(1) and s 16(1) charges here were identical as to the essential particulars of the respective failures to ensure safety, the only distinction being, of course, that the former concerned Mr Boyce as an employee of the defendant and the latter concerned a non-employee, Mr Swan, who was employed by Readiskill. If both persons had been employed by the defendant then only one charge under s 15(1) would have been necessary; equally with BHP where both Mr Boyce and Mr Swan were not its employees so that it faced only one charge under s 16(1). Ms McDonald acknowledged this distinction and the real identity between the charges against the defendant in terms of their common elements. Therefore, I propose to consider both charges for the purposes of sentence so as to ensure the defendant is not punished twice for the elements common to both.

43 I have been much assisted in this case in assessing an appropriate fine by what Kirby J said in Postiglione (189 CLR pp 340-341) as to the purpose of the parity and totality principles and how they operate in the sentencing process, as follows : The "parity" and "totality" principles are in the nature of checks required of sentencing judges out of recognition that the task of sentencing is not a mechanical due. The task could hardly be so given the many, sometimes conflicting, goals of sentencing which are "broad and varied" ( R v M (CA) (1996) 105 CCC (3d) 327 at 369, quoting R v Goltz (1991) 67 CCC (3d) 481 at 495). The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation. It has been recognised by this Court ( Mill v The Queen (1988) 166 CLR 59 at 67) that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred. In a real sense, the above comments by Kirby J mirrored what his Honour said in the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 that : ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided ... the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum ... must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender ...

44 With that in mind, the determination of penalty in cases under the Occupational Health and Safety Act has become well settled: see Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at pp 449-456 and Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at pp 472-476. In Lawrenson Diecasting (90 IR at p 475), the Full Bench put it this way : ... the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence ... subjective factors ... must play a subsidiary role in the determination of penalty to the gravity of the offence itself ... the presence of the subjective factors referred to (which must be kept in mind to mitigate seriousness or exculpate the offender) should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. One need only add, and as being consistent with what Kirby J said in Postiglione (189 CLR at p 341) as to the inappropriateness of a "crushing" sentence so as to require adjustment, the comments of the Full Bench in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 339 that "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".

45 Having in mind the agreed facts, the findings made and the submissions of the parties thereon as set out above, I assess the objective seriousness of each of the offences here in terms of their nature and quality as being of equal value and towards the top of the first quartile of the available range compared to a worst case for which the maximum penalty is provided. That results in a fine in the amount of $200,000 for each offence, a total of $400,000 for both offences.

46 An assessment of the subjective features affecting the defendant as to their impact on the sentence to be fixed requires attention to the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 in which Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove J and James J agreed) concluded (49 NSWLR at p 419 in pars [160] and [162]) : (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 in so far 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, for example, 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 per cent 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 some cases a plea will not lead to any discount.

... The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea. In so far as existing sentencing practice has been to allow discounts for pleas up to 35 per cent, encompassing all relevant matters, such a practice remains appropriate.

47 Allowing, then, for the subjective factors peculiar to the defendant, as stated earlier, and including the pleas of guilty, I would allow a discount of 20 per cent, that is, $40,000 for each offence so as to result in a fine for each offence of $160,000 thus giving a total of $320,000 for the two offences charged.

48 I am satisfied, in application of the parity principle, that a fine at the level so determined for each offence viewed separately properly relates in a comparative sense with the assessment earlier fixed for BHP as reflective of the defendant's degree of culpability as found - no adjustment is therefore necessary, in my view, for this aspect. However, I consider an adjustment is necessary to recognise the totality principle because, in my view, a total fine of $320,000 where the elements of the two offences were identical is wholly excessive and would result, unless adjusted, in the defendant being penalised twice for the commission of the common elements. Indeed, during argument both counsel accepted that it was proper to apply the principle and Ms McDonald conceded the significance of the elements for both offences being the same. In the circumstances, my view is that both charges should be considered as if they constituted one offence so that an appropriate total or cumulative sentence for both offences would be an amount of $160,000. I would apportion that total amount as to $80,000 for each offence by adopting the preferred course, as stated by the Full Bench in the Crown (Department of Education and Training) v Keenan (105 IR at p 194 in par [29]), of fixing separate penalties after the principle of totality had been applied.

49 Ms McDonald sought a moiety of the fines and I will so provide. As to costs, Ms McDonald sought an order that the defendant pay the prosecutor's costs and, with no resistance by Mr Hodgkinson, I will so provide.

Orders 50 I make the following orders - Matter No IRC 4586 of 1999 1. The defendant is convicted of the offence charged. 2. The defendant is fined an amount of $80,000, with a moiety to the prosecutor. 3. The defendant is to pay the prosecutor's costs of and incidental to the proceedings in an amount as agreed or assessed. Matter No IRC 4587 of 1999 1. The defendant is convicted of the offence charged. 2. The defendant is fined an amount of $80,000, with a moiety to the prosecutor. 3. The defendant is to pay the prosecutor's costs of and incidental to the proceedings in an amount as agreed or assessed. ____________________

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