We would have considered that this approach was appropriate even before the significant increase in levels of penalty were legislatively imposed effective from 1996. However, that legislative step is itself relevant to this question. As Spigelman CJ held (with the concurrence of Wood CJ at CL and McInerney J) in R v Howland 41 and 43:
41 ... the community has indicated that it wishes to denounce this conduct in the strongest terms. ... By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern.
...
43 Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have deterrent effect on others.
We conclude, in the light of the extract from the judgment in R v Howland that the significant increases in penalty which occurred from 1996 are of considerable significance in emphasising the importance of both particular and general deterrence in the sentencing process for offences against the Act and that the approach exemplified by the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited is decisively confirmed by that legislative intervention. It follows that we do not accept the appellant's submissions in relation to the question of deterrence, although the precise weight to be given to that issue is inevitably within the sentencing judge's discretion : Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 at 378. We conclude that in this case, although deterrence in both of its relevant respects is pertinent here, weight should also be given to the particular circumstances of the appellant . (emphasis added)
77 It should be firstly recognised from the judgment in Capral that the Court there rejected a contention by the then appellant that considerably less weight should have been given to deterrence in its case due to its attempts, both before and after the incident, to ensure the safety of workers. The Court found that both general and personal or specific deterrence were matters which should normally play a role in sentencing under the Act and that, although there are exceptional cases requiring a departure from that approach, they are rare at [74].
78 Further, the Court considered that it was unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. Where the offender continues to be an employer, the risk to safety of its employees or contractors may exist or be possible. Thus, the Court came to the view that in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future.
79 It follows, in my view, that notwithstanding the somewhat strident steps taken by the defendant to ensure the occupational health and safety of its employees, to which I will return in relation to the subjective features of this matter (and which are earlier described in the summary of the defendant's evidence and in the submissions made on behalf of the defendant), the question of specific deterrence may, as a matter of general principle, nevertheless be relevant. The fact that the industry in which the defendant operates is hazardous in nature does not eliminate the need for specific deterrence. Contrary to the submissions of the defendant in this respect, the need to encourage a sufficient level of diligence by an offender will be particularly relevant where the offender, such as the defendant, conducts a large enterprise which involves inherent risks to safety: Capral at [77].
80 In my view, and having regard to the principles of sentencing in Capral, specific deterrence should feature in the assessment of penalty in this matter. The defendant has conceded that it was unaware of, and had taken no steps to, assess the risks to safety of employees engaged in the process giving rise to the incident. It is necessary, in these circumstances, to ensure a sufficient level of diligence in the defendant searching for, identifying and removing risks to safety (even where the work to be undertaken does not form part of the defendant's ordinary work practices). This will be so in a hazardous industry, although regard needs to be paid, as noted in Capral, to the particular circumstances of the offence and the offender.
81 It should be noted at this juncture that allowance should also be made for the nature of the industry in which the defendant operates (and the inherent risks to safety therein) in the assessment of the defendant's prior record and in relation to the assessment of subjective features. These matters are discussed later in the judgment.
82 It should also be observed that general deterrence will also be a factor to be considered in the assessment of penalty: Capral at [75].
83 There are some additional considerations which are relevant to the assessment of the objective seriousness of the offence.
84 Firstly, in addition to the risks to safety on this occasion being reasonably foreseeable, they were also avoidable by simple remedial measures: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476. The actions taken by the defendant after the incident to remedy any deficiency in safety and to further improve the overall occupational health and safety of its employees at the workplace are factors in favour of the defendant in the assessment of penalty. However, such actions also clearly demonstrate the flaws in the existing system and steps which could have been taken to remedy those flaws: University of Sydney (at 21 - 22).
85 Secondly, there is the question of the significance of the injuries sustained by Mr Kenny. The relevant principle in relation to such matters is stated in Capral as follows:
We consider that the limited injuries suffered by Mr Stafford must be seen in the context of that evidence and also in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence. We consider that the relevant principle can be stated in this way. 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 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: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited at 90 - 91; and Page v Walco Hoist Rentals Pty Limited (No. 2) at 22.
86 Here, as in Capral, there was a relatively limited injury suffered by Mr Kenny. However, the risks to safety in this case, as earlier described, were not exemplified by the limited nature of the injuries suffered. The injuries do not give an accurate insight into the seriousness of the breach. In this case, there occurred a breach of the Act where there was every prospect of serious consequences arising from the risk to safety and this is the relevant consideration in assessing penalty.
87 Having regard to the foregoing considerations as to the objective features of this matter, I consider that the offence in this case is a serious one.
88 There is one further matter that should be dealt with at this juncture. Firstly, there was insufficient evidence to support the prosecutor's submission that the defendant was slow to act in rectifying various occupational health and safety problems. In the result, I reject those submissions.
89 The defendant has a number of prior convictions under the Act. I have earlier referred to two convictions by this Court in 1998 and 1999. This record needs to be considered in the context of the industry in which the defendant operates. In Capral at [84] it was found that sentencing should occur in relation to particular events associated with an offence with due regard to the particular circumstances of other offences, including the prior record of the defendant. The defendant's submissions as to the size and nature of its operations are relevant in this respect. Furthermore, I shall (following the approach taken by the Full Bench in Capral) avoid double counting of either culpability or penalty having regard to the provisions of s51A of the Act.
90 It is appropriate, in assessing the prior record of the defendant, to have regard to the relatively large number of employees engaged by it and the nature of the work carried out by the defendant and its employees including, as the defendant has put it, the inherently dangerous nature of its operations: WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW [2000] NSWIRComm 179 at [47] and WorkCover Authority of NSW (Inspector May) v Warman International Ltd (unreported, Marks J, Matter No. IRC3166 of 1997, 9 September 1998). Furthermore, the Court should consider the changes in safety measures being implemented by the defendant. In these circumstances, I shall not treat the defendant's record as poor for the purpose of assessing penalty, although the defendant's record may well become an issue in the event of any future breaches.
91 Before passing to the question of penalty, it is, however, appropriate to consider various subjective features which may properly lead to a reduction in the penalty which might otherwise have been imposed.
92 The defendant has entered an early plea of guilty which will give rise to a reduction in sentence upon the principle stated in R v Thompson; R v Houlton (2000) 49 NSWLR 383. I consider that the defendant has co-operated with the prosecutor in the investigation of the incident. In all these respects, I consider that the defendant has demonstrated contrition and deserves a discount based on subjective factors.
93 In applying the judgment in R v Thomson, I have had regard to the decision of Wright J, President, in WorkCover Authority v The State Rail Authority. I adopt his Honour's judgment in relation to the application of the guideline judgment. Wright J, in this respect, stated at [37 - 40]:
On 17 August 2000, after judgment was reserved in this matter, the Court of Criminal Appeal ( Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and other pertinent observations are set out in the judgment of the Chief Justice as follows:
160. The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.