WorkCover Authority of NSW (Insp Donnelly) v Riverina Wool Combing Pty Ltd

Industrial Relations Commission (NSW)|1999-08-12|Before: Kavanagh J, Wright J, Walton J, Peterson J, Fisher CJ, Cullen JJ, Bauer J, Maidment J, Hungerford J, Ms P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Insp Donnelly) v Riverina Wool Combing Pty Ltd [2000] NSWIRComm 29 PARTIES : PROSECUTION: WorkCover Authority of NSW (Insp Donnelly) DEFENDANT: Riverina Wool Combing Pty Ltd FILE NUMBER: IRC1511&1513 of 1999 CORAM: Kavanagh J CATCHWORDS : OHS - penalty - unguarded machines - effect on sentencing of prior convictions - application principle of totality LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) (unreported, Wright J, President, Walton J, Vice-President and Peterson J, 12 August 1999, IRC4881 of 1997) WorkCover Authority of NSW (Insp Hannah) v Wonar Pty Ltd (unreported decision, Fisher CJ, Glynn and Cullen JJ, 30.6.92, CT1214 of 1990) Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Insp Keenan) v Riverina Wool Combing Pty Ltd (unreported, Bauer J, CT1128 of 1994, 1 December 1995) Workcover Authority of NSW (Insp Keenan) v Riverina Wool Combing Pty Ltd (unreported, Maidment J, IRC7311 of 1997, 3 December 1998) R v Slattery (1996) 90 A Crim R 519 CASES CITED : Holder v King [1983] 3 NSWLR 245 Postiglione v The Queen (1997) 189 CLR 295 WorkCover v Waugh (1995) 52 IR 89 Mill v The Queen (1988) 166 CLR 59 Corbett v Borg (unreported judgment, Hungerford J, 15 May 1996, IRC1281,1282 of 1995 ACCC v Safeways Stores Pty Limited (1997) ATPR 41-562 Pearce v Queen (1998) 72 ALJR 1416 HEARING DATES: 02/22/2000 DATE OF JUDGMENT: 03/30/2000

PROSECUTOR: Ms P. McDonald (Barrister) SOLICITOR: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr M. Harmer SOLICITOR: Michael Harmer & Associates

JUDGMENT:

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC1511 of 1999 WORKCOVER AUTHORITY OF NSW (INSP DONNELLY) v RIVERINA WOOL COMBING PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983

IRC1513 of 1999 WORKCOVER AUTHORITY OF NSW (INSP DONNELLY) v RIVERINA WOOL COMBING PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 These are two prosecutions against this defendant under s15(1) of the Occupational Health and Safety Act 1983 (the Act). Summons No IRC1513 of 1999 pleads: On 22 September 1997, at Riverina Wool Combing Plant situated at Burns Road, Wagga Wagga in the said State, the defendant, being an employer, DID FAIL to ensure the health, safety and welfare at work of all its employees and in particular Colin Stibbard, in that it failed to provide plant, to wit, Carding Machine 14, that was safe and without risks to health, contrary to s 15(1) of the Occupational Health & Safety Act, 1983. The particulars of the charge provided: The defendant failed to provide plant, to wit, Carding Machine 14, that was safe and without risks to health. In particular, it failed to securely fence an 8 millimetre nip point between the top of the burr belt pulley and the guard rail of the said plant.

Summons No IRC1511 of 1999 pleads: On 16 December 1997, at Riverina Wool Combing Plant, situated at Burns Road, Wagga Wagga in the said State, the defendant, being an employer DID FAIL to ensure the health, safety and welfare at work of all its employees and in particular Garry Hilton, in that it failed to provide plant, to wit, Carding Machine 16, that was safe and without risks to health, contrary to s 15(1) of the Occupational Health & Safety Act, 1983.

The particulars of the charge provided: The defendant failed to provide plant, to wit, Carding Machine 16, that was safe and without risks to health. In particular, it failed to securely fence an 8 millimetre nip point between the top of the burr belt pulley and the guard rail of the said plant. 2 There was an agreed statement of facts related to both charges as follows: 3. At all material times, the Defendant: (a) Carried on the business of wool processing at the Riverina Wool Combing Plant situated at Byrnes Road, Wagga Wagga (the "Plant"). (b) Employed Colin Stibbard, 29 years of age, as a textile machine operator ("Stibbard"). (c) Employed Garry Hilton, 39 years of age, as a textile machine operator ("Hilton"). (d) Operated 16 carding machines in section 3 of the Plant. 4. At 7.50 am on 22 September 1997 at the Plant, Stibbard's left ring finger was degloved at the first joint when it was drawn into a burr belt pulley and its associated guide rail on carding machine No. 14 ("Carding Machine 14") (the "Stibbard Incident"). 5. At 7.40 pm on 16 December 1997 at the Plant, Hilton's right little finger was lacerated when it was drawn in between the burr belt and the burr belt pulley on carding machine 16 ("Carding Machine 16") (the "Hilton Incident"). As a result of the accident, Hilton sustained tissue and minor bone damage to the top of his right little finger that required surgery. Other than slight loss of feeling in his fingertip, Mr Hilton has no ongoing disability associated with the incident. 6. On 31 December 1997 Inspector Mark Barber, in company with Inspector Hannah, conducted an inspection of the Plant. Photographs were taken and a Factual Inspection compiled. At the time of the inspection the whole of section 3 of the Plant was closed for maintenance. Inspector Barber made the following observations: (a) Carding Machine No. 14 was one of 16 carding machines in section 3 of the Plant. It measured 11.8 metres long 2.7 metres wide and 2.0 metres high. (b) Carding Machine 14 contained a series of rollers. There were 2 Morel burr belts located on Carding Machine 14, which ran in a clockwise direction parallel to the rollers. (c) The burr belt was designed to carry out impurities that were extracted from the wool fibre going through Carding Machine 14. These impurities then go into a hopper and are removed from the area. (d) A metal cover with a clear perspex window guarded the Morel burr belt pulley, which was located before the Breast Cylinder and Coarse Cylinder on the left-hand side of Carding Machine 14 (the one relevant to the Stibbard incident). (e) The burr belt pulley in (d) measured 145 millimetres in diameter and 60 millimetres wide, and rotated at 60 revolutions/minute. (f) The burr belt pulley accommodated a continuous flat belt that was 40 millimetres wide. (g) On the belt were a series of plastic burr belt flippers, at 450 millimetre intervals. (h) The pulley was 990 millimetres above ground level. There was an 8 millimetre gap between the top of the pulley and the guide rail above the pulley. (i) General housekeeping was neat and tidy. 7. The configuration of Carding Machine 16 was similar to Carding Machine 14. 8. The carding machines in section 3 of the Plant had been in operation at the Plant since January 1994. The machines served two functions: (a) To remove large pieces of vegetable matter from the wool and fibre. (b) To commence the process of fibre alignment. 9. Burr build-up on the pulley bracket was a common problem of the carding machines. It was necessary to dislodge this build-up because it would eventually cause the burr tray to block and result in poor quality wool due to high vegetable content. 10. On the 22 September 1997 Stibbard conducted an inspection of the carding machines in section 3 of the Plant. He stopped and isolated carding machine No. 11 because it was completely blocked. After checking carding machine Nos. 12 and 13 that were clear, he observed a build-up of burr and wool on the plastic burr belt flipper cleaner situated on the burr belt pulley of Carding Machine 14. In contravention of training provided to Stibbard, the Defendant's isolation procedures and work instructions he reached down with his left hand to remove the burr build-up from the burr belt flipper cleaner However, upon doing so, the wool and his left ring finger were drawn into the revolving burr belt pulley and the guide rail causing the injury in paragraph 4. 11. Stibbard had been a Textile Machine Operator for approximately four and a half years. He had 12 months experience operating card machines. Stibbard's main duties consisted of him, in accordance with the Defendant's procedures, ensuring: (a) maintenance and quality control aspects of the Card Machines; (b) the care and pressing up of bi-products; (c) a consistent flow of wool. 12. Prior to the incident, the Defendant provided Mr Stibbard with formal structured training in relation to the use of the carding machines. Mr Stibbard underwent that training prior to being allowed to operate carding machines. Amongst other things that training and the Defendant's work instructions required Mr Stibbard to stop and isolate the carding machine before performing any work on it. This training included: (a) formal structured carding machine training module sessions on Carding Machine Safety (1 hour) on 20 May 1995 and 8 August 1997; (b) A formal structured Carding Machine Operation Training Module (15 hours) on 8 August 1997; (c) A Practical Skills Assessment on the safe operation of carding machines by Mr Stibbard including carding machine isolation procedures on 8 August 1997; and (d) Instruction in Riverina's documented Carding Machine Work Instructions on 8 August 1997. 13. On 12 January 1998, Stibbard was interviewed in relation to the matter. Mr Stibbard stated during the interview that: (a) He had performed the task of removing the build up of wool from around the plastic burr belt flipper cleaner whilst the carding machines were running on previous occasions. (b) The number of times he was required to remove build-up from the burr belt flipper cleaner per shift would depend upon the blend of the wool. (c) Stibbard thought it was safe to remove build-up from the plastic burr belt flipper cleaner at the end of the pulley but not the burr belt pulley. (d) He understood that isolation procedures did exist in circumstances where the card machines were blocked, but not when there was merely a burr build-up on the plastic flippers. 14. Subsequent to the Stibbard incident the Defendant: (a) Immediately had their production and maintenance supervisors conduct briefing sessions with all the Defendant's relevant employees stressing that no part of the employees' bodies were to enter the carding machines until they are isolated. (b) Commenced trialing various prototypes guards to cover the burr belt pulley, however encountered difficulties in finding a suitable guard on the basis that the early prototypes blocked up the burr trays resulting in uncontrolled stoppage of the carding machines and the operators removing the guards to prevent this and because they were inconvenient; and (c) Provided structured refresher safety awareness training to all relevant employees which included components on hand safety and isolation procedures. 15. On 16 December 1997, Hilton observed a build-up of burr and wool on a plastic burr belt flipper cleaner on the burr belt pulley on Carding Machine No. 16. In contravention of the training provided to Hilton, the Defendant's isolation procedures and work instructions he reached down with his right hand to remove the build-up, however, upon doing so, the burr, wool, and his right little finger were drawn in between the burr belt and the burr belt pulley. 16. Hilton had been a Textile Machine Operator for approximately 2 years. Hilton's main duties consisted of him, in accordance with the Defendant's procedures: (a) Ensuring quality production; (b) running the carding machines; (c) operating the burr and sweeping systems. 17. Prior to the incident, the Defendant provided Mr Hilton with formal structured training in relation to the use of the carding machines. Mr Hilton underwent that training prior to being allowed to operate carding machines. Amongst other things that training and the Defendant's work instructions required Mr Hilton to stop and isolate the carding machine before performing any work on it. This training included: (a) A formal, structured carding machine training module on Carding Machine Safety (1 hour) on 24 May 1996; (b) The structured safety awareness session in paragraph 16(c) directly arising out of the Stibbard Incident on 27 October 1997; (c) A formal structured Carding Machine Operation Training Module (15 hours) on 8 October 1997; and (d) Instruction in the Riverina's documented Carding Machine Work Instructions on 5 September 1997. 18. Shortly subsequent to the Hilton incident: (a) During its December closedown the Defendant, whilst not fully satisfied with the stage of development of the guards was satisfied that the potential for them to cause uncontrolled stoppages of the carding machines was limited, installed guards on the carding machines. Although, these guards continued to present the Defendant with further production difficulties and were subsequently refined and upgraded the guards over a period of approximately 3 months. (b) The Defendant formally warned Mr Hilton about failing to comply with its safety and isolation procedures in accordance with its usual procedures relating to non-compliance with safety procedures. 19. On 12 January 1998, Hilton was interviewed in relation to the matter. Mr Hilton stated during the interview that: (a) He would remove burr build-up from around the burr belt pulley up to 6 times per shift, depending upon the blend of wool. (b) Hilton was aware that, following the Stibbard incident, the Defendant had instructed the operators to isolate the carding machines before removing the burr by hand from the burr pulley area. He conceded that he did comply with that instruction for a few months, but that once his production dropped he re-commenced the practice of not isolating the machines. 20. On 12 January 1998 Inspector Barber interviewed Brett Morgan in relation to both incidents. Morgan was the Defendant's Team Leader responsible for the supervision of both Stibbard and Hilton at the time of their respective accidents. Mr Morgan indicated during that interview that: (a) The removal of burr and wool build-up may be required twice per shift, per machine, in circumstances where the wool blend had a heavy burr content. (b) He was aware that persons operating the card machines would remove burr build-up with the machines running. However, he would not describe this practice as a common occurrence. (c) At the time of the Stibbard incident he was not aware whether the Defendant had a procedure specifically related to the removal of burr build-up from the pulley belt area. (d) It was his understanding that, prior to the Stibbard incident, if he or other employees were working inside the carding machines, then the machine must be stopped and isolated. 21. On 27 March 1998, Mark Hoolahan, who was authorised to speak on behalf of the defendant, was interviewed in relation to both accidents. Mr Hoolahan stated during that interview that: (a) Carding machines had been in operation at the Plant since 1981. (b) There was no history of like accidents involving Stibbard prior to 22 September 1997. (c) To the Defendant's knowledge, carding machines used in other countries were not guarded around the burr belt area. 22. The defendant, RIVERINA WOOL COMBING PTY LTD (ACN: 001 799 935) , has had: (a) the following convictions that are prior convictions for the purposes of both matter Nos IRC1511 and 1513 of 1999: 24.07.90 FSIAs27 FINED $2000 24.07.90 FSIAs44(a) FINED $2000 28.07.95 OHSs15(1) FINED $17,500 (b) the following convictions that are antecedents only for matter No. IRC 1513 and are prior convictions or the purposes of matter No. IRC 1511 of 1999: 23.09.97 OHS s15(1) FINED $9000 23.09.97 OHS s15(1) FINED $6000 (c) the following conviction that is antecedent only for the purposes of both matter Nos IRC 1511 and 1513 of 1999: 03.12.98 OHS s15(1) FINED $55,000 3 During the hearing as to penalty a correction was made to para 22(a) of the Amended Agreed Statement of Facts as to a date of the imposition of the fine under s15 of the Act which date was incorrect. The date should have read 1 December 1995 and not 28 July 1995. The correct date was confirmed by the WorkCover Authority during the proceedings and para 22(a) was amended. 4 The Amended Agreed Statement of Facts as to para 22 now reads:

The defendant, RIVERINA WOOL COMBING PTY LTD (ACN: 001 799 935) has had: (a) the following convictions that are prior convictions for the purposes of both matters numbers IRC1511 and 1513 of 1999: 24.07.90 FSIAs27 FINED $2000 24.07.90 FSIAs44(a) FINED $2000 1.12.95 OHSs15(1) FINED $17,500 (b) the following convictions that are antecedents only for matter number 1513 and are prior convictions or the purposes of matter number 1511 of 1999: 23.09.97 OHS s15(1) FINED $9000 23.09.97 OHS s15(1) FINED $6000 (c) the following conviction that is antecedent only for the purposes of both matter numbers IRC 1511 and 1513 of 1999: 03.12.98 OHS s15(1) FINED $55,000

5 Mr Harmer, Solicitor, appeared for the defendant, in answer to the charges, and Ms McDonald of Counsel appeared for the prosecution. The defendant entered a plea of guilty to each charge and having examined the facts of the matters the court accepts the pleas as appropriate in the circumstances. 6 The defendant is charged with failing to ensure the health, safety and welfare of two particular employees in that it failed to provide or maintain safe plant and equipment. Both offences concern the operation of machines called Carding Machines. These machines are located in Section 3 of the Combing Plant. Both offences involved the same risk to safety, that is, there existed unguarded nip points on all the Carding Machines by the top of the burr belt pulley and the guard rail. There were some 18 similar machines in operation in this wool processing plant at the relevant time. 7 The first offence occurred on 22 September 1997 and the second offence on 16 December 1997. In respect to both offences an employee was removing the build up of burr and wool while the machine continued to operate and suffered injury to his fingers which were drawn into the unguarded nip points. 8 The defendant is a processor of raw wool in the regional country area of Wagga Wagga, New South Wales. The factory was established in Australia in 1981 and became a wholly owned subsidiary of Chargeurs Wool, a French company, in 1988. The plant operates two shifts, 24-hours a day, 7 days a week, and as at the relevant date, September 1997, had approximately 240 employees, now reduced to 189 with the outsourcing of maintenance workers. 9 As was said in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Ch'ng) (unreported, Wright J, President, Walton J, Vice-President and Peterson J, 12 August 1999, IRC4881 of 1997) by the Full Bench of the Industrial Relations Commission: It is important that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged ... It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

As to s15(1) offence the Full Court also held: In the case of an offence under s 15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at p 9), properly in our view that 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.' 10 The prosecutor submitted that a number of the objective features in this case called for the imposition of a substantial penalty. The maximum penalty prescribed by the Parliament at the date of this offence was $550,000. However, the prosecutor called for the application of 51(1) of the Act which requires, if there exists, any prior offences under s 15 of the Act, the prescription of an additional penalty up to $275,000 as there are prior penalties recorded against this defendant. The maximum penalty for each offence is therefore $825,000. (See Insp Mayo-Ramsay v Capral Aluminium Ltd, on appeal, unreported, Hungerford J, 9 April 1999; Insp Tyler v NSW Roads and Traffic Authority, unreported, 31 August 1999). I find s 51(1) has application to these charges. 11 In assessing the nature and quality, that is the gravity, of the offences, the court takes into account the obvious risks involved and the foreseeability of the risks against which appropriate measures were not taken. 12 The defendant tendered documentation which revealed that existing at the time of the accident was a National Training Authority approved Training Programme for the workers at this site, which programme acknowledged that in the work process: One of the problems you will find when working on the cards is the burr beaters continually block up with wool and burr. So that we do not have to stop the card we use an aluminium hook to reach in and clean the burr off the flippers. WARNING: If you cannot remove the burr with the hook you must isolate the card before placing your hands near the carding machine . 13 The defendant admits this defined procedure was itself unsafe. The workers who were injured placed their fingers into a moving part to remove a blockage. Had they used the hook recommended in the procedure the injury suffered could have been more severe. 14 Mr Stibbard's injury to his hand on 22 September 1997 was a degloving of the left ring finger to the first knuckle. He reached into the machine to clear the burrs without turning the machine off and agreed (in a statement to WorkCover) that he often performed the task of removing the build-up around the plastic burr belt flipper with the carding machine running. He thought it safe to remove the build-up and he understood the isolation procedures to stop the machine were only to be used when the Card Machines were blocked and not where there was simply a build-up of wool and burr on the plastic flippers. 15 Mr Hilton on 16 December 1997, some three months after Mr Stibbard's accident, also put his left hand into a Carding Machine between the burr belt and the burr belt pulley because of a build-up of burr and wool. He suffered lacerations to his finger and hand. 16 The defendant had written to the WorkCover Authority reporting the first accident which report was received on 29 September 1997 and under the heading "Action Taken" stated: A guard has been designed and fabricated for the burr belt pulley area of the carding machine. This guard will now be fitted to all burr belts on all cards. 17 This was not a true statement of the work environment. Mr Hilton was injured 2½ months after this statement and assurance had been given to WorkCover Authority. There was no guard on the machine Mr Hilton was required to use. Evidence reveals there was no guard on any of the Carding Machines operating around the burr belt pulley area. 18 The company submits after the first accident it designed a prototype guard. However the prototype itself caused stoppages to the operation of the Carding Machines. Management determined the guards had to be redesigned. It determined to experiment further with the guard design over the December break. However, notwithstanding Mr Stibbard's injury, workers were obliged to continue to operate the machines when the company knew it had dangerous moving parts not guarded. It exposed its workers to risk of injury and did so knowingly. Mr Hilton suffered his injury when his hand was drawn into the unguarded moving parts. 19 Mr Hilton in interview revealingly said: Q. At the time of the accident, was it normal procedure to remove burr from the belt pulley or in the manner in which you did? A. If the pulley was blocked you would stop and isolate the machine, but to prevent a blockage you would just remove the burr build-up from off the end of the pulley area before it became a problem. What I was doing was just trying to keep the machine running because we have targets and that sort of thing here. 20 What becomes clear from an examination of this workplace is not only were there exposed moving parts in the machines causing an obvious risk to health, but having had the risk to safety pointed out to it, the company, with production quotas in mind, did not give safety a priority. When prototype guards delayed production the company rejected those guards, leaving an obvious risk to safety and its workers exposed to same. It continued to operate the machines with a full knowledge of the risk. The defendant required Mr Hilton to continue to perform its dangerous practice and procedure. Mr Hilton consequently suffered injury. 21 The documentation reveals this company has production targets which targets placed pressure on both management and the employees. The targets were one of the reasons both employees and managers turned their backs on safe working. 22 However the warning issued by the court in WorkCover Authority of NSW (Insp Hannah) v Wonar Pty Ltd (unreported decision, Fisher CJ, Glynn and Cullen JJ, 30.6.92, CT1214 of 1990 at 9-10) is apposite in the circumstances: There was a known and perceived danger, unchecked, and left in place. The seriousness of these errors is not open to denial and the case must be assessed on that basis.

23 The procedures in operation at the time of both these accidents were not sufficient to provide protection against risk. As was held in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.

24 The continuing failure of the defendant to adequately guard the machine after the first accident is an aggravating factor to be considered in determining the appropriate penalty in relation to the second offence. 25 In the circumstances I find the nature and quality of the first offence as outlined in summons No. 1513 of 1999 as serious and the nature and quality of the second offence, as outlined in summons No. 1511 of 1999 as most serious. 26 In mitigation Mr Harmer offers to the court evidence of significantly revised work procedures, which includes a document dated February 1998, post-dating the accident, revising instructions for checking and clearing the burr tray. The checking is now to be done once per shift and/or "when burr tray is blocked." The procedures to be followed states: "Stop and isolate card machine, remove burr pulley safety cover, remove build-up of burr." 27 Further, the defendant tenders a very comprehensive Occupational Health and Safety Procedures Manual, which manual acknowledges the role of an occupational health and safety steering committee, risk management assessments and audits and a comprehensive training program. 28 In an examination of pre-existing Employee Training status reports, Mr Stibbard in relation to the general operation of the carding machine had received three training programmes each of approximately half an hour to an hour, one in 1995 and two in August 1997. Mr Hilton had received four in 1996, one in 1997 and one in 1998. Training programmes pre-existed the two accidents. However, as is acknowledged by the defendant the workers, were being trained in an unsafe system of work for some of the operations of the Carding Machine. 29 The court has cited the new procedures to be followed where there is an identification of a hazard from an audit of machines. There now exists a check list and this check list monitors the implementation of the recommendations arising out of the audits. 30 The defendant submitted it had an extensive, safe system of work in place at the time of the accident and compliance with same would have prevented the accident. The court rejects this proposition. The application of a hook into the burring machine which was operational on its face is a clearly unsafe system and might have caused even a worse injury than that which occurred. 31 However, in mitigation the court accepts there was an early plea of guilty entered to these breaches of the Act. Although there were five mentions before the plea of guilty was noted in this matter, there were ongoing negotiations over that period of time for an agreed statement of facts with the WorkCover Authority. The WorkCover Authority agrees the company gave it full co-operation in its investigation of the accident. That may be so but the defendant misled the Authority as to the action it took post dating the first offence. Such is admitted by the defendant. 32 I have before me documentation which assures the court the appropriate rehabilitation was given to both workers. They were provided with a graded programme for return to full duties. The workers have been advised of their associated rights in relation to a claim for the loss of use of their limbs. 33 Further, in consideration of penalty, the company relies on its industrial reputation. It contributes significantly in a rural regional area of NSW not only in providing valuable employment to a significant number of workers, but also in the provision of traineeships and scholarships for local workers. The company is a strong supporter of local charities and takes its responsibilities as a corporate citizen very seriously. It has established a fine record in relation to pollution control and land management. 34 The court takes into account the defendant's plea of guilty. It accepts an early plea was entered and it accepts the company is one with a fine corporate reputation, valuable to a local district. However the industrial accident record of the company is also before the court. This company has six prior convictions and as the facts have been put before the court, three of the breaches under s15 of the Act related to risks from unguarded parts to machines causing amputation or injury to fingers, hands and arms of workers. 35 In consideration as to the defendant company's industrial record, judgments outlining the circumstances of two of the convictions against this company are before the Court. In WorkCover Authority of NSW (Insp Keenan) v Riverina Wool Combing Pty Ltd, (unreported, CT1128 of 1994, 1 December 1995) Bauer J said of a worker (at 4): It seems that the injured worker noticed a build-up of material cleaned from the wool ... He bent down and attempted to remove it by using his hand. His hand was drawn into the spinning card and he was seriously injured.

His Honour commented (at 7): This is a case that demonstrates the reason for vigilance in the installation of guards on machines and the requirement for prescience in the design of those machines.

36 Maidment J, three years later in WorkCover Authority of NSW (Insp Keenan) v Riverina Wool Combing Pty Ltd, (unreported, IRC7311 of 1997, 3 December 1998), examined an accident where a press operator's arm was pulled into a nip point between a conveyor belt and a rotating roller. The worker attempted to rectify a jam and in doing so his hand was drawn into the machine. His Honour repeated the warnings of Bauer J (at 4): . . . one would have hoped, the earlier accidents and the ... recorded observations of Bauer J would have led to a safety audit of each machine in use at the site. Any such audit, properly conducted, would have disclosed the fact that this machine was not securely guarded.

His Honour found that accident was serious, foreseeable and avoidable and followed upon not dissimilar incidents in breach of the Act. The breach examined by Maidment J occurred on 11 June 1998. The accidents before this court occurred one year later and again involve unguarded machines. 37 The court has therefore before it two more breaches of the Act where machines were not properly guarded. This company has been given many warnings by the Court and has disregarded the Court's expressed concern and breached its own assurances to the WorkCover Authority. 38 In determining the appropriate penalty for such breaches of the Act the Court is aware of the need for general deterrence and a reflection of community standards. The legislature has expressed the view of the community and a commitment to safe working by increasing fines sharply. In R v Slattery (1996) 90 A Crim R 519, Hunt CJ at CL) this issue was addressed: The action of the Legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the Legislature that the existing sentencing patterns are to move in a sharply upward manner ( R v Tomi Petteri Hartikainen (CCA, 8 June 1993, unreported) at 2.

This defendant attracts serious censure from the court. 39 As there are two separate offences before the Court of a similar nature there must be consideration of the principle of totality to ensure an appropriate relatively between the totality of the criminality and the totality of the sentence. 40 The Court is of the view the most serious charge before it is that in summons No 1511 of 1999. It is of the view the other charge in summons No. 1513 of 1999 is a lesser but serious breach. Both breaches are perceived as identifying known and perceived risks to safety ignored by the defendant. 41 The principle of totality has been examined in this court in Insp Milligan v State Rail Authority (unreported, 13 October 1999, IRC7032-7036 of 1997) and by Walton J, Vice-President in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor (unreported, 4 February 2000, Nos IRC 1104, 1106 of 1998). In Holder v King [1983] 3 NSWLR 245 (at 260) Street CJ described the principle in the following way: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense the overall criminality involved in the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is always less than that would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. and McHugh J in Postiglione v The Queen (1997) 189 CLR 295 described the operation of the principle thus: The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner has been charged. . . . Where necessary the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

42 Different approaches to the operation of the totality principle have been adopted by the Industrial Commission of NSW. In Moore v E.W. Cox, ((1990) 37 IR 145) Fisher J held that where successive failures were involved it was appropriate to impose a single penalty. In WorkCover v Waugh ((1995) 52 IR 89), the Court held that: The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate for each individual offence where the offences are similar, thus avoiding doubling of a penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

43 A different approach to the operation of the totality principle is described by the High Court in Mill v The Queen (1988) 166 CLR 59: . . . the effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in accordance with the principles governing consecutive sentences to review that aggregate sentence and consider whether the aggregate is just and appropriate.

44 In Warman v WorkCover Authority ((1998) 80 IR 326) the Industrial Commission in Court Session when applying the totality principle, determined individual fines for each offence. In Corbett v Borg (unreported judgment 15 May 1996, IRC1281, 1282 of 1995), Hungerford J adopted the following approach in sentencing a defendant in respect of two offences arising out of the same facts and circumstances: I would consider an appropriate penalty to be $15,000 for each of the two offences considered separately. However, that would result in a total fine of $30,000 where the total maximum fine prescribed is $50,000. I regard that result, having in mind that the facts giving rise to the offence were essentially common, as excessive. By applying the principle of totality, I consider a proper fine in the whole of the circumstances to be in the aggregate an amount of $20,000 comprising a fine of $10,000 for each offence.

45 In the Federal Court of Australia, Goldberg J applying the totality principle in ACCC v Safeways Stores Pty Limited ((1997) ATPR 41-562 at 43,817) stated: The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved . . . But that does mean that a Court should commence by determining an overall penalty and then dividing it amongst the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. . . .

46 The most recent decision of the High Court in Pearce v Queen (1998) 72 ALJR 1416 at 1424 called for a greater degree of transparency by the sentencing Judge in exposing the manner in which and the reasons by which the aggregate sentence is arrived at: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions .... of cumulation .... as well, . . . as questions of totality.

(See also discussion from a paper Justice Wood, District Court of New South Wales Annual Conference, April 1999 reported in Judicial Officers Bulletin Vol 11 No 5, June 1999 at 35). 47 The defendant is convicted. In matter IRC1513 of 1999 I find the defendant guilty. I fine the defendant $80,000 In matter IRC1511 of 1999 I find the defendant guilty. I fine the defendant $130,000.

48 In the application of the principle of totality I fine the defendant $180,000 with a moiety to the WorkCover Authority.

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