WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council

Industrial Relations Commission (NSW)|1999-12-06|Before: Wright J, Schmidt J, Kavanagh J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57 PROSECUTOR PARTIES : WorkCover Authority of New South Wales (Inspector Angela Mulder) DEFENDANT Yass Shire Council FILE NUMBER: IRC1609 & IRC1610 of 1999 CORAM: Wright J President CATCHWORDS : Occupational health and safety - Prosecutions under s 15(1) of the OH&S Act - Plea of guilty - Local government - Serious amputation accident - Circumstances of alleged breaches of safety - Principles applicable to sentencing under the OH&S Act - Gravity of offences - Approach to be adopted in relation to early plea of guilt - Significance of contrition - Acts demonstrating contrition - Approach required by Pearce v The Queen - Totality - Defendant convicted - Fines imposed. LEGISLATION CITED : Fines Act 1996 (NSW) s 6 Occupational Health and Safety Act 1983 (NSW) s 15(1) s 49A Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors (1997) 145 ALR 36 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Kondis v State Transport Authority (1984) 154 CLR 672 Mill v The Queen (1988) 166 CLR 59 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Page v Walco Hoist Rentals Pty Ltd (No.2) [2000] NSWIRComm 39 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Holder [1983] 3 NSWLR 245 R v Winchester (1992) 58 A Crim R 345 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1988) 80 IR 326 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 WorkCover Authority of New South Wales (Inspector Keenan) v The Crown in Right of the State of State of New South Wales (unreported, Schmidt J, Matter Nos IRC98/598 and 601, 6 December 1999) WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Kavanagh J, Matter Nos IRC97/7032-7036, 13 October 1999) WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 12/02/1999; 04/18/2000 DATE OF JUDGMENT: 04/20/2000

PROSECUTOR Mr G M Phillips, Solicitor Carroll & O'Dea, Solicitors LEGAL REPRESENTATIVES: DEFENDANT Mr M K Scott of Counsel Davis Faullkner & Co, Solicitors

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NSW (INSPECTOR ANGELA MULDER) v YASS SHIRE COUNCIL Prosecution under s.15(1) of the Occupational Health & Safety Act 1983

1 The defendant, Yass Shire Council, has pleaded guilty to two charges brought by Angela Mulder, an inspector of the WorkCover Authority of New South Wales, under s 15(1) of the Occupational Health and Safety Act 1983 (the Act). Ms Mulder (the prosecutor) is authorised by s 48 of the Act to institute these proceedings. The defendant was incorporated pursuant to s 220 of the Local Government Act 1993 and at all relevant times operated the Yass Waste Transfer Station at Faulder Avenue, Yass, where it is alleged the offences, and the accident which gave rise to the offences, occurred. Section 15(1) of the Act provides: Every employer shall ensure the health, safety and welfare at work of all the employer's employees. 2 The charge in the amended summons in the first matter IRC99/1609 alleged that: The Defendant being an employer at the Yass Waste Transfer Station, Faulkner Street, Yass, in the State of New South Wales on 4 May, 1997 did fail to ensure the health safety and welfare at work of all its employees, and in particular Mr Peter James Bell, in that the Defendant failed to provide gloves which were appropriate and adequate in relation to the use and operation of a machine owned by the Defendant known as a "Little Rippa Chippa Model 80" a wood chipping machine ("the machine") so as to ensure the health and safety at work of its employees and in particular, Mr Peter James Bell.

3 The charge in the amended summons in the second matter IRC99/1610 alleged: The Defendant being an employer at the Yass Waste Transfer Station, Faulkner Street, Yass, in the State of New South Wales on 4 May, 1997 did fail to ensure the health safety and welfare at work of all its employees, and in particular Mr Peter James Bell, in that the Defendant failed in relation to the use and operation of a machine owned by the Defendant known as a "Little Rippa Chippa Model 80" a wood chipping machine ("the machine") to provide or maintain a system of work that was safe and without risk to health in that the Defendant failed to ensure that the machine was operated by no less that two employees. 4 The particulars of the charges in each matter were with one exception identical. In the first matter the final particular was: It is alleged that on 4 May, 1997 the Defendant being an employer at the said site failed to ensure the health, safety and welfare of all of its employees and, in particular, Mr Peter James Bell in that the Defendant failed to provide a set of gloves to Mr Bell which were appropriate and adequate for the purpose of using the machine. and in the second matter the final particular was It is alleged that on 4 May, 1997 the Defendant being an employer at the said site failed to ensure the health, safety and welfare of all of its employees and, in particular, Mr Peter James Bell in that the Defendant failed to provide or maintain a system of work that was safe and without risk to health in that the Defendant failed to require that the machine be operated by no less than two employees at the one time. The other matters particularised in the respective amended summonses are set out to the extent relevant in the agreed facts to which reference is later made. 5 The prosecutor was represented at the hearing of the proceedings by Mr G M Phillips , solicitor. The defendant was represented by Mr M K Scott of counsel. The defendant entered a plea of guilty in respect of the charges.

Factual Background 6 An agreed Statement of Facts relevantly in the following terms (omitting annexures) was tendered by the prosecutor, with the defendant's consent: 3. At all material times, the Defendant operated the Yass Waste Transfer Station, Faulder Avenue, Yass in the said State (hereinafter referred to as "the premises"). 4. At all material times, Mr Peter James Bell was employed by the Defendant as a transfer station operator at the premises. 5. Mr Bell had initially been employed by the Defendant pursuant to an offer of temporary employment for one (1) month commencing on 3 February, 1997. This offer was made by letter dated 3 February, 1997. By further letter dated 3 March, 1997 the Defendant offered further casual employment to Mr Bell until 30 June, 1997. Both letters advised Mr Bell that the Defendant "will provide gloves and other safety equipment as required". Mr Bell was advised that his duties would involve the pressing of paper/cardboard and plastic bales and that he would also be required to be in attendance at the premises on Sundays where he would accept recyclable materials, waste and tipping fees. 6. On 28 February, 1997, the Defendant had purchased a wood chipping machine from Arbor Products International (Australia) Pty Limited (ACN 054 186 319) (hereinafter referred to as "Arbor"). The machine was known as the "Little Rippa Chippa Model 80" ("the machine") and was purchased by the Defendant for the sum of $35,760.00. Arbor supplied a document with the machine which is described as a "Hazard Identification Document". Within the body of the document is a section entitled "Entanglement". At point 3 of this section, the document reads:- "If gloves are worn by operator, ensure cuff is not a catch point. This could result in serious injury or loss of life." 7. The machine owned by the Defendant was made available to employees of the Defendant including Mr Bell for use at the premises. Mr Bell had indicated to the Defendant that he had experience in using wood chipping machines prior to obtaining employment with the Defendant. 8. On 4 May, 1997 Mr Bell was in attendance in the course of his employment at the premises. Also present was a Mr Ian Todd, another employee of the Defendant who was designated as Mr Bell's supervisor for work on that day. It was the practice of Mr Bell and Mr Todd to swap jobs during the course of the performance of their duties for the Defendant. Mr Bell commenced work on 4 May, 1997 by operating the presser machine for pressing bottles and was collecting money for excess garbage, whilst Mr Todd was operating the machine. At approximately 11am on 4 May, 1997 Mr Bell commenced using the machine whilst Mr Todd was operating the pressing machine and was collecting money from persons arriving at the Yass Waster Transfer Station to deposit garbage. Mr Todd and Mr Bell were approximately 50m to 100m apart at the time that Mr Bell was operating the machine alone. 9. Annexed hereto and marked with the letter "A" is a series of photographs of the machine. Depicted on the photograph is a bar which extends up both sides of the infeed shute and across the top of the shute which is described as the "safety control bar". The safety control bar operates the feed roller which is a moving part of the machine into which branches and timber refuse are fed. The safety bar, if pulled towards the operator standing immediately in front of the machine causes the feed roller to rotate so as to pull branches and/or timber into the feed roller, then under the feed roller and onto the cutting discs which are within the machine behind the feed roller. If the safety bar is pushed to the middle position, neutral, the feed roller does not rotate. If the safety bar is pushed towards the machine away from the operator past the neutral position, the feed roller is reversed causing any material in contact with the feed roller to be pushed back towards the operator. 10. The length of the feed shute, from the front face of the shute to the nearest point of a roller tooth is 815mm. 11. On 4 May, 1997 at Yass whilst using the said machine alone in the course of his employment, one of the gloves worn by Mr Bell, which gloves had been supplied by the Defendant, became entangled in a thorny branch. Mr Bell had tried to release his left hand with his right hand with the result that both hands and arms were pulled into the feed rollers and were amputated. 12. Mr Bell was initially taken to the Yass Hospital and was then transferred to the Canberra Hospital. Mr Bell now has a left above the elbow amputation and a right below the elbow amputation. 13. The WorkCover Authority was notified by the Defendant both by telephone and by Written Accident Report on 5 May, 1997. An Inspector of the WorkCover Authority initially attended on 5 May, 1997 and on a number of other dates and conducted an investigation into the circumstances of the accident and took the photographs which are annexed hereto and marked with the letter "A". This and subsequent enquiries reveal that:- (a) Pursuant to its contract of employment with Mr Bell, the Council was responsible for providing "gloves and other safety equipment as required". (b) The supplier of the machine, Arbor, had in a document which was supplied to the Defendant with the machine ("Hazard Identification Document") notes at point 3 under the heading of "Entanglement" that "if gloves are worn by operator, ensure cuff is not a catch point, this could result in serious injury or loss of life". (c) The gloves that had been provided to Mr Bell were ill-fitting in that they were too large for Mr Bell's hands. (d) The glove worn by Mr Bell on his left hand became entangled in a branch that he was feeding into the machine on the said date. (e) Due to the rapidity with which Mr Bell's hand was pulled into the machine, he was not able to operate the "safety control bar" so as to either reverse the operation of the feed roller or to place the feed roller into the neutral position. 14. On 1 February, 1999, an Inspector of the WorkCover Authority interviewed Mr Gary John Chapman, the General Manager of the Defendant who was legally authorised to speak on behalf of the Defendant. Mr Chapman confirmed that:- (i) Mr Bell was an employee of the Defendant at the time of his accident and his duties were to assist in the operation of the Yass Waste Transfer Station. (ii) At the time of his accident, Mr Bell was performing his normal duties under the supervision of another employee of the Defendant, Mr Ian Todd. (iii) The Defendant owned the machine involved in Mr Bell's accident. (iv) The machine had been purchased from Arbor. (v) The machine although it could be operated by one person, in the interests of safety, the Council normally operated the machine with at least two (2) persons present. (vi) It was apparent that the use of the machine by an individual should be discouraged. 15. It is alleged that the Defendant, the Yass Shire Council, being an employer on 4 May, 1997 at Faulder Avenue, Yass in the State of New South Wales failed to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Peter James Bell, in that it failed to provide a set of gloves to Mr Bell which were appropriate and adequate for the purpose of using the machine. Further, the Defendant failed to require that the machine only be operated with two (2) persons present at all times. In the subject accident, Mr Peter James Bell suffered the traumatic amputation of both of his arms, the left arm above the elbow, the right arm below the elbow. The gloves supplied to Mr Bell were too big for his hands and did not perfectly fit Mr Bell's hands, thus increasing the risk of the gloves becoming entangled in the refuse being fed into the machine. This failure occurred notwithstanding the warning set out in the "Hazard Identification Document" supplied by Arbor with the machine to the Defendant. At the time of his injury, Mr Bell was operating the machine alone. Mr Bell was unable to operate the "safety control bar" to either cease the rotation of the feed roller or to reverse the rotation of the feed roller. Had a second operator been present, that person would have been able to operate the safety control bar and hence prevent an employee such as Mr Bell coming into contact with the rotating feed roller. 16. The Defendant has no prior convictions. 17. A prosecution pursuant to s.18 has been initiated against Arbor in this Commission.

7 In addition, the prosecution relied upon an inspection report of Inspector Hart, another WorkCover Inspector, dated 26 May 1997 concerning the inspection carried out by him of the site of the accident the day after it occurred. The prosecution also tendered expert reports from two health professionals to whom the injured worker had been referred. The first assessment was from Ms Judith Davidson, Consultant Occupational Therapist and Hand Therapist (Upper Limb Prosthetic Rehabilitation); the second from Dr Lorraine Jones, Consultant in Rehabilitation Medicine. It is not necessary to discuss those assessments in detail. The matters set out in considerable detail in the relevant reports are matters particularly personal to the injured worker. Nevertheless, I have considered those matters because they are, in terms of the relevant principles, relevant to an assessment of the gravity of the offence. It is not possible to overstate the seriousness of the accident as it has affected the injured worker, Mr Bell, who is a 40 year old married man with seven children. The injuries suffered by Mr Bell, and the consequent surgical intervention required, are set out in the statement of facts (see paragraphs 12 and 15). It is however to be observed that Ms Davidson notes that the "effects of [Mr Bell's injuries] have been devastating on Mr Bell and his family."

8 The defendant also relied upon evidence from Graham Andrew McGinley and Gary John Chapman. Mr McGinley is the Technical Services Engineer of Yass Shire Council and Mr Chapman its General Manager.

9 Mr McGinley gave evidence as to the background to the purchase of the machine, including the requirements under the Waste Minimisation and Management Act 1995; how the Council's Engineering Department tendered and won Council's Waste Management Contract in September 1996 and assumed control of the Yass Transfer station site in November 1996. Most organic waste was, at that time, being disposed to landfill, with small quantities being stockpiled on site with no plans for treatment. He referred to the investigations carried out by contacting and visiting surrounding Councils to determine their methods of organic waste disposal.

10 He referred to the maintaining of the quantity of material being brought into the Yass Transfer Station during December 1996 and January 1997 and that it was considered that a mobile woodchipper would be capable of shredding the material on a daily basis using the existing Council staff. An advertisement was placed in the Sydney Morning Herald specifying the type of machine that Council sought. The specification was intentionally quite brief to enable Council to evaluate a variety of machines. The specification was for a mobile woodchipper capable of handling material up to 225mm (9") diameter. The machine should be diesel powered with an engine capacity of approximately 60hp. A number of enquiries were received from relevant manufacturers and importers.

11 As to the evaluation process of the seven quotations for the supply of Council's woodchipper, the witness indicated that there were several reasons why this machine was chosen, not the least being its additional safety features compared with other machines, but primarily the knee-bar. This provided a mechanism whereby the machine could be stopped by applying pressure to the knee bar located below the feed entry shute.

12 He also referred to the training provided by Arbor Pty Limited. Although those trained did not include the injured worker, it did include the other worker on site at the time. Mr McGinley said that during the training session he asked a question about the number of staff required to operate the machine and was told that one person was sufficient but a second should be nearby.

13 As to the supply of gloves to employees, the staff arrangements at the Yass Waste Transfer Station, and the use of the machine after the accident, Mr McGinley said: 6.1 Council's Storeman is responsible for the purchase of gloves and all other apparel. 6.2 Council currently carries three basic types of glove in store - a leather rigger's glove (as worn by Peter Bell), a fur-lined riggers glove and a rubberised open mesh nylon glove. Both the leather and nylon mesh glove expand and contract to a large degree which enables one glove size to fit all hands. 6.3 In the few cases where the standard issue glove is unsuitable, the storeman will attempt to find a more suitable glove. This has been the case with the fur-lined gloves now issued to some employees who developed a form of tinea from the use of the leather rigger's glove. 7.0 Staffing Arrangements at the Yass Waste Transfer Station. 7.1 The Yass transfer station has been staffed by a minimum of two operators every day since Council took over its operation. The current level of staffing at the Yass transfer station is still two. 7.2 On the advice of the woodchipper's manufacturer, Arbor Products, Council permitted one person to operate the machine as long as a second person was nearby. There was never any intention to have the machine operated by an employee working totally alone. 7.3 Council had ensured that no employee would operate the machine alone as a roster had been drawn up and complied with which ensured that there was always a minimum of two staff available on any day of the week. 8. Use of the Machine After the Accident. 8.1 Immediately after the accident the machine was quarantined and put into storage. The few times it has been operated since the accident has been solely for the purpose of inspection by Workcover staff and others who have been acting on behalf of Workcover, Council or Mr Bell. 8.2 Council has not used the machine for the purpose it was purchased since the day of the accident. 14 Other evidence from Mr McGinley which the defendant relied upon as crucial to its plea included: 10. Why Did the Council Decide to Buy any Machine of the "Little Ripper" type? 10.1 To remove the green waste from the waste stream required Council to treat the material and reuse it. The ultimate goal was to be able to mulch and compost the shredded material and reuse it on Council projects with any surplus being sold to the public. Fresh green material is desirable for composting as it has the correct moisture content and bacteria present. If the material is left for several months, particularly during summer, all natural moisture evaporates and the hard dry material remaining is difficult to shred and requires the addition of water, bacteria and enzymes to promote the composting process. 10.2 Yass Shire Council has a relatively small population and the amount of green waste generated within the shire is quite small, especially when compared to the likes of Canberra. The amount of material generated and taken to the Yass Transfer Station each day was monitored and it was anticipated that a woodchipper of the "Little Ripper" size and type would be able to treat the quantities being received daily. Shredding the material daily would ensure that the moisture content was maintained and the natural bacteria and enzymes would be available for the composting process. 10.3 It was believed that by purchasing a machine of the "Little Ripper" type would ensure that the product produced was of a good quality, would help provide employment and circumvent some of the difficulties that Council currently experiences obtaining contract woodchippers. … 15 Detailed evidence was also given as to the steps taken by the defendant and its officers to assist WorkCover in investigating the accident. He also gave detailed evidence as to the steps that the defendant had to take since the accident to deal with the relevant waste.

16 Mr Chapman gave evidence as to the nature, composition and functions of the defendant. He explained that the Yass Shire Council area like many rural areas is suffering economically, as a result of the rural decline; that many residents who gain their living from the rural sector, particularly in the sheep/wool industries, are suffering extreme hardship. Many local government services, that were once enjoyed by residents can no longer be provided. This decline in living standards will continue under current economic conditions. He referred to the Council's annual budget and how its "financial position is one of maintaining financial stability under significant financial pressures, matched with an ongoing reduction in community services. It would not be characterised as having extensive areas of discretionary expenditures." In oral evidence, Mr Chapman indicated that the resources available to the defendant for payment of any penalty were limited. It did not have any large surpluses available and its financial resources have been used and thus affected by the alternative waste treatment required as a result of the machine involved in the accident being taken out of service. An amount in excess of $40,000 per annum has been paid to contractors in that respect. The council does not intend to use the machine again.

17 As to its waste management services, he emphasised that the council has always been forthright in having a firm commitment to protecting the environment and engaging the principles of sustainable ecological lifestyles. Reference was made to Council's program in this area and the impact of the introduction of legislation in 1995 by the State Government, and the onerous responsibilities placed thereby onto local government, particularly rural authorities, to reduce waste to landfill by 60 percent. He explained how Yass Shire Council responded to this government initiative and legislative requirement, and in endeavouring to attain environmental best practice, being a good environmental citizen, embarked upon an extensive program of waste minimisation and reduction of waste to landfill.

18 As to the employment of Mr Bell and the assistance provided to him subsequent to the accident, Mr Chapman said:- 5.1 Mr Bell first came into contact with Council through a Federally funded employment scheme that Council had brokered and supervised. The period of employment was 6 months and during this time Mr Bell was trained in Occupational Health and Safety legislation, the safe use of chainsaw and wood chipper, in addition to the safe use of chemicals and areas of personal development. 5.2 Yass Shire Council has always sought to take advantage of employment schemes and to assist local residents to improve their chances of becoming become gainfully employed. A number of other employment schemes did follow as a result of this one. 5.3 After the employment program was completed, Council commenced a program to undertake the removal of trees and other snags in local waterways and because of Mr Bell's good employment record, and the fact that he had received training in the use of chainsaws and woodchippers, he was offered casual employment for 6 months, with another participant in the employment program, Mr Ian Todd. 5.4 This work involved the cutting down of large trees, which constricted the flow of water in Chinaman's Creek in Yass. Trees cut down were then cut into manageable lengths by chainsaw and when there was sufficient quantities of timber a chipper was hired from a local firm or through a Canberra based contractor to chip all waste timber. Both Messrs Bell and Todd assisted in the chipping of timber which en masse included significant quantities of leafy material and large tree limbs. This program of works continued for about 6 months. 6 Assistance Provided to Mr Bell Subsequent to the Accident 6.1 The injury sustained by Mr Bell has affected all staff deeply. Subsequent to Mr Bell's accident occurring on 4 May 1997 Council has assisted as follows. 6.2 Mr Bell was employed on a casual basis working less than the award specified 38 hours per week. Since the date of the accident Mr Bell has been remunerated on the basis of full time employment. 6.3 Due to his injuries Mr Bell has been unable to resume duties. The post injury period has exceeded 2 years and to this point in time Council has continued to employ Mr Bell. Mr Bell's employment has not been terminated as while ever Council is deemed to be the employer Mr Bell's creditors have a local point of contact to discuss payments and associated account problems. 6.4 Council and its insurer, the Government Insurance Office, employed the services of a provider to assist Mr Bell after the accident. The well-respected Sydney based firm of Ravagnani and Associates was engaged due to its considerable experience with difficult rehabilitation cases. This was a more expensive option than engaging a local provider but costs were not the determining factor. 6.5 It was recognised that Mr Bell's injuries would prevent him from utilising many of the existing fixtures in the family home. Occupational Therapists were consulted and a listing of the required household alterations were compiled. To ensure that the work was completed in a timely manner and to minimise the number of tradesman entering the family home, much of the work was carried out by Council's Building Maintenance Officer.

19 As to the council's Occupational Health and Safety Policy and record, he referred to its Occupational Health and Safety Committee and the role of management and employee representatives; how Council ensures that all members of the Committee participate in an accredited Safety Committee Training Course, conducted by an accredited trainer; its OH&S Reviews, which include, inter alia, details of all reported accidents and "near misses" being presented as an agenda item at each Committee meeting; safety inspections; policy initiatives - such as Council implementing a number of programmes aimed at increasing worker safety at Yass. He testified that, as a safety conscious employer, Council aims to provide a safe working environment for its workers and visitors. It endeavours to remove risks where possible and adopt accident prevention in the workplace.

20 As to the defendant's prior record, he observed that the Council has been in existence since 1908 and during that time has maintained a very low incidence of injuries in the workplace. It has never been prosecuted under any workplace safety legislation. It has had very few lost time accidents, as confirmed by workers' compensation premium data available.

21 The defendant also tendered two other documents. The first was a letter from the supplier of the machine dated five days after the accident which indicated, inter alia, that the "machine had been shown to be the best machine on the market for operator safety"; the second document was the defendant's code of safety practice. I do not consider that the first document is to be given any significant weight. Its date and content show that it has limited relevance to the matters that the Court must consider in these proceedings. As to the second document, it will be considered in conjunction with the evidence of the defendant's witnesses in so far as that evidence relates to the safety record of the defendant and its claim that it is a safety-conscious employer. Submissions of the Parties 22 The solicitor for the prosecutor submitted that the Court should approach the assessment of penalty on the basis that the offences were serious offences. They were not inadvertent or technical breaches of s 15 of the Act. The relevant circumstances were such that it could not be said that the level of culpability or the foreseeability of the accident was low. Both of the matters alleged were easily remedied, and at little expense. Further, as to the charge involving the failure to provide appropriate gloves that was a requirement on the defendant under the contract of employment with the relevant employee. In addition, the document provided by the supplier referred specifically to the relevance of proper gloves being supplied and the safety implications of non-supply of such gloves (paragraph 6 of the agreed facts).

23 As to the other charge, although the defendant accepted that the machine should be operated with at least two employees present, and although on the day in question another employee was in the vicinity he was not present actually operating the machine. It was also submitted that the gravity of the offence was, in terms of relevant authorities such as the judgment of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at 5, demonstrated by the seriousness of the injuries suffered and their catastrophic effects on the injured worker. Reference was made to the medical reports tendered. The prosecution properly conceded that the Court should have regard to the various subjective factors put forward by the defendant in its favour. The Court should also have regard to the fact that the defendant has been in existence for over 90 years and this was the first time that it has been charged with an offence under safety legislation. It was accepted that there had been a early plea of guilty and co-operation with the WorkCover Authority.

24 Counsel for the defendant submitted that, in assessing the appropriate penalty to be imposed on the defendant, the Court should have regard to all relevant circumstances. Reliance was placed on material which indicated that the other employee was not far away from the machine when it was being operated on the day of the accident. It was also submitted that the Court should be aware of the inexperience of the council in relation to machines of this kind and the inference from that submission was that the Court should give weight to the reliance by the council upon the information provided by, and the expertise of, the supplier of the machine. It was submitted that this was not a case where the equipment in question had been in operation for a long time. Rather, the council had undertaken a careful selection and tender process and the machine had been in operation for a few months prior to the accident. The defendant and its officers genuinely understood that the machine was a safe machine and safe to operate. In addition, the defendant relied upon the advice given by the supplier's representative that it was safe to operate the machine using one person, provided another one was nearby.

25 Counsel also emphasised the seriousness with which the council had approached its environmental responsibilities and that the purchase and use of the machine had been a direct response to government requirements which it was carrying out in an environmentally appropriate manner. Reliance was placed upon the subjective matters which had been conceded by the prosecution as appropriate for the Court to take into account in favour of the defendant. In particular, it was accepted that the approach of the Court in WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 represented an approach appropriate for the Court to take in this matter in relation to a local government body. Counsel relied heavily upon the defendant's demonstrated contrition and the evidence called to emphasise and demonstrate that contrition. Contrition and a practical and appropriate response to the serious accident had also been shown by the decision of the council not to use the machine any more. Attention was drawn to the limited resources of council and the public purposes for which its funds were raised and expended, including the $40,000 per year expended because of the accident. Counsel also relied upon the detailed material before the Court as to the co-operation extended by the defendant to WorkCover in its investigations; the early plea of guilt; and the material demonstrating that the defendant is a safety-conscious employer with a good safety record confirmed by its 90 years existence without a prosecution for a breach of any safety legislation; and steps taken by the defendant after the accident. Principles applicable to sentencing under the OH&S Act 26 The principles applicable to sentencing for offences under the Occupational Health and Safety Act which have been developed by this Court and its predecessors, were discussed in some detail in the judgment delivered on 4 April 2000 in Page v Walco Hoist Rentals Pty Ltd (No.2) [2000] NSWIRComm 39 at 21 to 27. It is therefore unnecessary to repeat that discussion in this judgment. Without detracting from the more detailed discussion referred to, the crucial consideration is that the true measure of penalty lies in the nature and quality of the offence and although due allowance has to be made for subjective considerations, it is essential that the Court ensure that the allowance for those factors does not produce a sentence which fails to take account of the objective gravity of the offence. In assessing penalty, the maximum penalty available for the offence reflects the public expression by parliament of the seriousness of the offence with a large penalty indicating the gravity of the offence as perceived by the community. In those circumstances, the task of this Court is to assess the relative seriousness of the particular offence in relation to the worst case in which the maximum penalty is provided, having been increased to $500,000 early in 1996. The approach that courts should take in relation to that circumstance is well settled in that it requires the existing sentencing pattern "to move in a sharply upward manner".

27 The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of the penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety. In terms of general sentencing policy and as required by section 6 of the Fines Act 1996, the Court is required to consider the means of the defendant in terms of such information as is reasonably and practicably available to the Court for this purpose. I apply the principles as summarised, and as elaborated in the judgment referred to, for the purpose of assessing penalty in this matter.

28 There are, however, particular difficulties raised by this matter which involves imposing fines upon the defendant for two offences arising out of a single incident or episode. The High Court recently made the following observations, in upholding an appeal from the New South Wales Court of Criminal Appeal, in Pearce v The Queen (1998) 194 CLR 610 at 45-46: To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality ( Mill v The Queen (1988) 166 CLR 59). Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process. 29 Previous decisions of this Court have held that the principles thus stated are to be applied in imposing fines under the Act. See, for example, WorkCover Authority of New South Wales (Inspector Milligan) v State Rail Authority of New South Wales (unreported, Kavanagh J, Matter Nos IRC97/7032-7036, 13 October 1999) at 16 and WorkCover Authority of New South Wales (Inspector Keenan) v The Crown in Right of the State of State of New South Wales (unreported, Schmidt J, Matter Nos IRC98/598 and 601, 6 December 1999) at 29. However, as Kirby P observed in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704, although the "principle of totality is applicable where the penalty imposed is by way of fine … it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation." Similarly, it may be that the principle in Pearce v The Queen does not have quite the same force in the imposition of fines under the Occupational Health and Safety Act particularly where, as in this case, although two charges have been laid, they substantially involve, in terms of substance rather than form, one breach of the Act, albeit with a number of separate particulars of the offence, and where a single charge could have been laid in the light of the insertion in the Act of s 49A (cf Page v Walco Hoist Rentals Pty Ltd (No.2) at 45). Nevertheless, in deference to the consideration that other judges of the Court have applied in terms the approach in Pearce v The Queen , and accepting that the judgment of the High Court might be considered as referring generally to the appropriate policy approach as to sentencing, without distinguishing between sentencing involving the imposition of a term of imprisonment and sentencing involving the imposition of a fine, I consider that I should approach the matter in the terms laid down in Pearce v The Queen.

30 As to the question of totality, and notwithstanding the doubts, as noted earlier, of Kirby P in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority , the approach required in that regard is clear. For example, in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 100, the Full Court ( Fisher CJ, Bauer and Cullen JJ) said: The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider an overall penalty which includes the circumstances of a further or second offence. See also Mill v The Queen (1988) 166 CLR 59 at 62-63; R v Holder [1983] 3 NSWLR 245 at 260; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Ors (1997) 145 ALR 36 at 53; Warman International Limited v WorkCover Authority of New South Wales (1988) 80 IR 326 at 339; and Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 211.

Consideration 31 There is no serious dispute between the parties as to how the accident relevant to these two charges occurred. Accordingly, there is no serious dispute as to the gravity of the offences that have been committed. I consider that the defendant was entirely correct in deciding to enter pleas of guilty in these matters. It is inevitable that it would have been convicted if it had decided to contest the proceedings. It is therefore appropriate that a conviction be entered in relation to both offences.

32 The defendant does rely, however, in relation to the assessment of the gravity of the offences, upon the lack of experience of the council in relation to the operation of the relevant machine, its apparently careful selection process of this machine, and its reliance upon the expertise of the company supplying it. I do not consider that those matters are to be accorded a great deal of weight in this case. They do not have a significant effect in lessening the gravity of the offences. At common law, an employer has non-delegable duties to provide, inter alia, a safe system of work and safe equipment or plant for its employees. See, for example, Glass, McHugh and Douglas The Liability of Employers, 2nd ed, Law Book Company, 1979 at 2-7 and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-333, 344-345, 350-352, 361, 366-368, 394-397 applying Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688, 694-695 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551. No lesser duty, subject to the defences in s 53 of the Act, arises under section 15. Indeed, as is plain from authorities dating almost from its commencement, the Act imposes obligations on employers to ensure, in the sense of "guaranteeing, securing or making certain" the "health, safety and welfare at work" of the employer's employees, and imposes the requirement on the employer to: exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the work place. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the work place.

See Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85; and Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 210. 33 Once the factors relied on by the defendant to mitigate the objective seriousness of the offence are considered in the appropriate perspective, it is plain that the gravity of offences was great. This is a case where the seriousness of the breach of the Act is demonstrated clearly by the seriousness of the injuries suffered by the injured worker. The seriousness of those injuries does not need to be detailed further. The facts accepted by the parties show a situation where a significant hazard to health and safety existed, or was permitted to occur. A machine was used by employees in circumstances which were dangerous, and foreseeably so. The provision of inappropriate and ill-fitting gloves was accepted as the cause of the worker being drawn into the machine with his upper limbs pulled into the feed rollers and cutting devices in the machine. This was in circumstances where the documentation supplied with the machine put the employer on clear notice as to the importance of the gloves supplied to the safe operation of the machine. The events that occurred at the time demonstrate the gravity of the resulting risk to safety. As to the second charge, it is accepted that, although the machine could be operated by one employee, its safe operation required the immediate presence of two employees. The speed with which the amputation injuries occurred demonstrates that an employee at risk might not be able to operate the "safety control bar" in the situation where that might be the only avenue available to avoid or minimise the hazard. This conclusion accepts, at least in part, the "safety control bar" as a safety feature although Inspector Hart's opinion was that it was "not … a safety feature only a control". Again, the circumstances at the time clearly demonstrate the gravity of the risk to safety arising from the use of the unsafe system of work.

34 Nevertheless, the defendant is entitled to rely upon all of the subjective considerations that have been put forward on its behalf and which the prosecution has fairly and appropriately conceded were available to the defendant. These include its lengthy safety record over the 90 years' existence of the council. It has demonstrated that, but for the present offences, it is entitled to be considered a safety conscious employer. Further, it took appropriate steps after the accident and co-operated fully with the relevant authorities, such as the WorkCover Authority. It is entitled to credit for its early plea of guilty, although the inevitability of a conviction if it had contested the proceedings does mean that the degree of leniency that can be afforded will be diminished ( R v Winchester (1992) 58 A Crim R 345 at 350). It should, however, have the benefit of the important utilitarian considerations arising from the plea which will have a mitigating effect on the sentence which would otherwise be imposed.

35 It is also entitled to rely significantly upon its demonstrated contrition referred to in the evidence of Mr Chapman as to the assistance provided to the injured worker subsequent to the accident. Although some commentators have pointed out that it is impossible for a judge accurately to estimate the sincerity of remorse or contrition (Ashworth, Sentencing and Criminal Justice, London, 1994 at 130, as cited by Mack and Anleu, Pleading Guilty: Issues and Practices Australian Institute of Judicial Administration, 1995 at 161), experience in occupational health and safety matters indicates that in many cases it is possible for an employer charged under the Act to provide tangible confirmation of contrition by support and assistance rendered to injured employees or to the families of victims of fatal accidents (see, for example, Page v Walco Hoist Rentals Pty Ltd (No.2) at 43; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40 at 29; and Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 at 17. That is the case here.

36 I also consider that I should have regard to the financial circumstances of the defendant although that consideration does not, of itself, mean that a substantial penalty should not be imposed. It is also appropriate to have regard to the nature of the defendant council and its operations as occurred in WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council at 407. However, it is important to give appropriate weight to the objective seriousness of the offence, bearing in mind the inherently unsafe system that was in place, that the risk was obvious and that the risk was entirely foreseeable. It is also necessary to give due weight to the need for deterrence both general and individual.

37 Taking all those matters into account, the assessment of each of the offences is to be approached in the terms set out in Pearce v The Queen . It is therefore necessary to assess the appropriate penalty in relation to each charge and then apply the principle of totality. Although at one stage I considered that the second charge was the more serious, I have now concluded that each of them is to be regarded as equally serious. Each charge is circumscribed to an extent and each is specific and limited to a particular feature of an overall system or method of work, although the first charge relates to a failure to provide appropriate equipment. Having due regard to the various mitigating features referred to, and the particular circumstances of the defendant, the appropriate penalty in relation to the charge in matter number IRC99/1609 is $65,000 and the penalty in relation to the charge numbered IRC99/1610 should also be $65,000. The principle of totality, as discussed in Pearce v The Queen , then requires consideration of the overall culpability or criminality attributable to the defendant from both convictions, and in that process ensuring that there is no "double counting" of the culpability of the defendant from the respective offences. Approaching the matter in that way, I consider that the overall culpability of the defendant, (bearing in mind the significant practical overlap between the two offences, and the aggregate culpability arising from the effect of both breaches occurring at the same time and being evidenced by a single incident) would result in a total fine of $90,000. Having regard to the separate assessments of the culpability of the defendant in relation to the two offences, fines of $45,000 should be imposed in each matter. Orders 38 The Court accordingly makes the following orders: 1. The defendant is convicted of the two offences alleged under s 15(1) of the Occupational Health and Safety Act 1983. 2. In Matter No IRC99/1609, the defendant is fined the sum of $45,000, with a moiety of that fine to the prosecutor. 3. In Matter No IRC99/1610, the defendant is fined the sum of $45,000, with a moiety of that fine to the prosecutor. 4. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed or, in default of agreement, as assessed. ~~ooOoo~~

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Occupational Health and Safety Act 1983(NSW)s 15(1)

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