WorkCover Authority v Howard and Sons Fireworks Spectaculars

PROSECUTOR: Mr S Crawshaw S.C. with Mr B Docking of counsel Solicitor: Ms J Wright Jones Staff & Co LEGAL REPRESENTATIVES: DEFENDANT: Mr D Day of counsel Solicitor: Mr P Bird Kenny Spring Solicitors

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: BOLAND J DATE : 29 May, 2001 Matter No IRC 839 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES v HOWARD AND SONS FIREWORKS SPECTACULARS PTY LTD

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 In an earlier judgment in this matter (Workcover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211), the Court found the defendant, Howard & Sons Fireworks Spectaculars Pty Limited, guilty of an offence under s 16(1) of the Occupational Health and Safety Act 1983. The charge against the defendant was that "it did fail to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking, while they were in the defendant's place of work". The particulars of the charge were as follows: 1. The defendant was at all material times was (sic) incorporated in New South Wales having its registered address at 4th Floor, 460 Church Street, North Parramatta in the State of New South Wales. 2. The defendant was, at all material times, an employer engaged in the business of setting up and carrying out fireworks' displays. 3. On 18th February, 1997, the defendant entered into a contract with the Newcastle Agricultural, Horticultural and Industrial Association Inc. to provide a fireworks' display on 27th and 28th February and 1st March, 1997 at the Newcastle Showground which is located at Broadmeadow in the State of New South Wales. 4. On 28 February, 1997, at approximately 10.30 p.m., Judith Westphal, a person not in the employ of the defendant, was standing between the general grandstand and the members' grandstand of the Newcastle Showground, approximately one to three metres behind the show ring fence to view a fireworks display put on by the defendant. There was a short delay in the high level fireworks' display towards the end of the entire fireworks' exhibition, approximately the same time as the ground level fireworks' display was initiated. At this time, an undetonated fireworks' shell struck Judith Westphal on the lefthand side of her face, causing her injury. 5. The fireworks' shell that struck Judith Westphal was a Thunder Bird brand TB84-308 fireworks' shell, measuring 100 mm which the defendant had purchased from Hop Kee Pyrotechnics, a company engaged in the manufacture of fireworks located in China. 6. The defendant was aware that on previous occasions, fireworks' shells had not burst. 7. The system of work used by the defendant for providing the fireworks' display on 28 February, 1997 commenced with a site inspection to determine safety distances between the proposed firing point and spectators, which in turn determined what fireworks would be used for the exhibition. The fireworks were then prepared at either the firing point or on trailers, depending upon the location of the proposed firing point and the pre-fireworks' display activities around the proposed firing point. 8. The safety distances used by the defendant to determine maximum shell size for a display are from the WorkCover Authority of New South Wales Dangerous Goods Publication DG108 "Fireworks Displays" and the Draft Australian Standards DR96479 "Explosives Part 4: Pyrotechnics - Outdoor Display". The defendant used the aforementioned documents to set up a fireworks' display so that a fireworks' shell which fails to burst does not result in injury to spectators even though these were distances formulated for correctly functioning fireworks, not for fireworks' shells which fail to burst. 9. The defendant did not use any instrumentation to verify the angle which a fireworks shell is launched from a mortar. As the angle that the mortars are fixed to the trailer and the angle the trailer are set to are estimated. (sic) Without verification of the firing angle and hence potential trajectory of the fireworks' shell, safety distances to spectators from fireworks' shells which fail to burst cannot be determined. 10. The defendant failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking, while they are in the defendant's place of work in that the defendant: (i) Failed to apply distances between the firing point and spectators which minimised the risk of spectators being injured by malfunctioning fireworks; (ii) Failed to have an adequate system of work for determining the firing angle and hence potential trajectory of the fireworks' shell; (iii) Failed to determine the distance that a fireworks' shell, which fails to burst, will travel for a given lift charge and set mortar angle, with the knowledge that fireworks' shells may misfire.

11. As a result of the defendant's failure to ensure that persons not in its employment, namely Judith Westphal, are not exposed to risks to their health or safety arising from the conduct of the undertaking while they are at its place of work, Judith Westphal sustained the following injuries: (i) major fractures from above her eyebrow and down to her jawline including her teeth and from the lefthand side of her face to her nose; (ii) broken cheekbone; (iii) squashed left eye, causing the lens to pop out; (iv) teeth pushed out of alignment; (v) badly broken bones around her left eye, most of them shattered; (vi) broken nose. 2 In the earlier proceedings, I found the facts to be as follows:

1. The defendant is a company incorporated in New South Wales and it was admitted that the defendant was also an employer;

2. The Informant, Senior Inspector Robins, is an inspector appointed pursuant to s 31 of the Act; 3. The defendant contracted with the Newcastle Agricultural, Horticultural and Industrial Association Inc. to provide a fireworks display on 27th and 28th February and 1st March, 1997 at the Newcastle Showground; 4. Christian Howard, a Director of the defendant, was in charge of the fireworks display conducted during the evening of 28 February 1997. He was assisted by an employee of the defendant, Michael Lawrie; 5. At the time he conducted the fireworks display at the Newcastle Showground, Christian Howard held a current Display Fireworks General Permit issued in accordance with the Dangerous Goods Act 1975 and the Dangerous Goods Regulation 1978; 6. Christian Howard had conducted between 400-500 fireworks displays prior to the display at Newcastle; 7. In or about November 1996 Andrew Howard, another Director of the defendant, carried out a site inspection of the Newcastle Showground in preparation for the fireworks display. Andrew Howard also designed the display having regard to, amongst other things, the size of the arena at the Showground. Andrew Howard was unable to conduct the display and Christian Howard, having been briefed by Andrew, undertook the task; 8. The fireworks display consisted of a ground display and an aerial display. The finale of the display was a high level aerial display; 9. The aerial display was launched from a towable, double axle box trailer acknowledged as suitable for the purpose. Approved mortar tubes were placed vertical in the trailer and wedged in with wooden wedges. The trailer was situated in the centre of the arena. The trailer had a jockey wheel situated in the mid-front of the trailer. By turning the handle on the jockey wheel the front and rear end of the trailer could be raised or lowered. At the two rear corners of the trailer were situated two jockey pads, both which could be raised or lowered so that in conjunction with the front jockey wheel the level of the front and rear ends of the trailer could be raised or lowered and the trailer made into a stable platform. By these mechanisms the angle of the mortar tubes wedged into the trailer could be increased or decreased from the vertical. The trailer could also be moved so that it faced any direction;

10. On the night in question the front end of the trailer was facing north-east and following the testing of wind speed and direction by firing comets to a height of 200 metres, and watching flags around the arena which were about bursting height, Christian Howard set the angle of the mortar tubes at an angle of somewhere between five and ten degrees from the vertical in a north easterly direction. As Mr Crawshaw said "The idea was that by shooting at an angle into the north-east wind, that the fireworks would then be blown back by the wind, that was a north-easterly wind, and would come back somewhere in the vicinity of where they were being fired from.";

11. Mr Howard did not use any instruments to set the angle of the mortar tubes and relied solely on visual estimation. Mr Howard agreed under cross examination that he could not be absolutely certain that the angle at which he set the mortar tubes was five degrees or even 15 degrees but he said he determined the angle "from prior knowledge of shooting shells." In relation to wind speed and direction, the evidence was that wind readings taken at Nobby's Lighthouse, approximately 10 kilometres from Newcastle Showground, at 2200 and 2300 hours on 28 February 1997 were north-east at 10 knots and north-north-east at 11 knots, respectively. At the time of the accident Ms Westphal's evidence was that the wind was "just a gentle sort of breeze"; 12. It will be noted from the sketch that the direction of firing was away from the position in which Ms Westphal was standing. The angle between the point of aim and Ms Westphal's position was about 135 degrees in an anti-clockwise direction; 13. The distance between the firing point and Ms Westphal was about 84 metres. The distance from the firing point to the north-eastern fence of the arena was about 62 metres; 14. The calibre or diameter of the aerial shells containing the fireworks used on the evening of 28 February 1997 were variously 2.5 inches (60 mm), 3 inches (75 mm) and 4 inches (100 mm). The 60 mm shells travelled to a height of about 60 metres before exploding, the 75 mm shells a height of about 90 metres and the 100 mm shells about 120 metres; 15. The calibre of the shell that hit Ms Westphal and caused her injuries at about 10.30 pm on 28 February 1997 was 100 mm. The shell was a Thunderbird brand TBB4/308 manufactured in China by Hop Kee Pyrotechnics and was owned by the defendant. The shell failed to explode. The reason why the shell malfunctioned is not definitely known. The reasons speculated for the malfunction were that the fuse simply went out or, alternatively, the shell in question was struck by another shell in flight thereby extinguishing the fuse;

16. Christian Howard was aware that aerial shells could misfire or malfunction and fail to burst. However, since 28 February 1997 the defendant had fired some 12,000 100 mm shells and had not experienced any failures;

17. The defendant had no information from the manufacturer or supplier of the 100 mm shell which indicated the distance that a shell which fails to burst will travel for a given lift charge and set mortar angle. The defendant relied on the minimum safety distances listed in a draft Australian Standard DR96479 "Explosives. Part 4: Pyrotechnics - Outdoor displays" to ensure that a fireworks shell purchased from Hop Kee Pyrotechnics which fails to burst would not result in injury to spectators.

18. Table 3.2 "Minimum Safety Distances - Aerial Shells and Salutes" of the draft Australian Standard DR96479 provided that the minimum safety distance from the firing point to spectators for a 100 mm aerial shell or salute was 50 metres. The draft Standard also provided that: "Mortars shall be angled such that- (a) any aerial shell which has not initiated as intended will fall within the display site (or within a controlled and unoccupied area); and (b) pyrotechnic devices will not cross over or burst above any area occupied by spectators." And further that: "Notwithstanding the minimum safety distances, display fireworks shall be placed at a safe distance from spectators." 1. The Display Fireworks Permit held by Christian Howard was issued subject to compliance with the conditions in a Brochure known as DG 108 issued pursuant to the Dangerous Goods Regulation 1978. The Brochure provided that in respect of high level displays (those where fireworks are expected to reach a height in excess of 60 metres) the minimum distance for shells was "at least 50 m from the point of launch except in the direction of flight when the distance shall be 100 m. A larger distance may be required for shells over 200 mm. These must not cross over or burst above spectators." 3 A significant issue in the earlier proceedings was a contention by the defendant that, according to the Summons, it was required to answer charges relating to alleged failures under s 16(1) only in respect of one person, namely, the person injured on the evening of 28 February 1997, Ms Judith Westphal. The defence contended this on the basis of the wording in Particulars 10 and 11 of the Particulars of the offence set out in the Summons. Mr D Day, counsel for the defendant had submitted that because Particular 11 limited the defendant's failure to Ms Westphal and that the prosecution did not word the Summons to say, for example, "persons including Ms Westphal", that all the defendant should be required to answer is the charge relating to Ms Westphal.

4 In the earlier judgment the Court noted at par 38: The significance of this is that the prosecution alleges the defendant's failure under s 16(1) extends to and includes other spectators, in particular those within 100 metres of the firing point and who were in the line of fire to the north east of the firing point. If Mr Day 's argument were successful I would need to confine any consideration in this matter to the alleged failure of the defendant in respect of Ms Westphal.

5 The Court held, however, that it did not intend to limit its consideration of the alleged failure of the defendant to Ms Westphal and would consider the prosecution's allegations that the defendant's failure under s 16(1) of the Act extended to and included other spectators, in particular those within 100 metres of the firing point and who were in the line of fire to the north-east of the firing point.

6 In the result, the Court held that the prosecution had not made out its case in relation to the south-western spectators, which included Ms Westphal but had succeeded in establishing, beyond reasonable doubt, that in relation to the north-eastern spectators the defendant had failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking, while they were in the defendant's place of work. Accordingly, I found the offence proven.

7 The matter came back before me on 30 April 2001 for hearing as to penalty. Mr D Day continued to represent the defendant and Mr S Crawshaw SC, with Mr B Docking of counsel, continued their representation of the prosecutor.

8 Mr Crawshaw provided written submissions, supplemented by further oral submissions. His submissions may be summarised as follows:

1. The appropriate sentence, based on the facts on which the offence was proven, is not insignificant, but is not the worst type of case. 2. The primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the Occupational Health and Safety Act, this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464 at 474. Subjective factors must play a subsidiary role in the determination of penalty to the gravity of the offence itself. 3. The objective circumstances relied upon by the prosecutor were: (i) the maximum penalty prescribed by Parliament: WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179; Independent Cargo & Wool Services Pty Limited v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994); (ii) the need for general deterrence: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384; Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 at par 73. The need for specific deterrence: Capral at pars 71-79; (iii) the offence involved obvious risks: WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. The question of foreseeability is relevant to the assessment of the seriousness of the offence: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27. The risk to the north-eastern spectators was found to have been readily foreseeable; (iv) It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting at 476. In the present case it was found "Clearly, the risks to health or safety were due to causes over which the defendant did have control and against the happening of which it was practicable for the defendant to make provision". (v) 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 respondent: Lawrenson Diecasting at 476; Capral Aluminium at par 94. In the present case the facts concerned a business of setting up and carrying out fireworks displays. The distance from the firing point to the north-eastern fence of the arena was about 62 metres. DG108 required the distance to be 100 m. The calibre or diameter of the aerial shells containing the fireworks used on the evening of 28 February 1997 were variously 2.5 inches (60 mm), 3 inches (75 mm) and 4 inches (100 mm). The 60 mm shells travelled to a height of about 60 metres before exploding, the 75 mm shells a height of about 90 metres and the 100 mm shells about 120 metres. Mr Saddington's evidence was that he was present along with committee members and other persons on the verandah in the horse office (i.e., the direction of the firing to the north-east) and there were between 10,000 and 15,000 people at the show. The people watching the fireworks display were either in the grandstands or "moving around". Mr Howard's evidence was that there were people around the arena to the east and north-east and west and south-west of the firing point who were less than 100 metres from the firing point; (vi) The Act requires a pro-active approach on the part of the employer to safety, particularly in an industry which is very dangerous or perhaps even inherently unsafe: Ferguson v Nelmac (1999) 92 IR 188 at 210 ; WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85; (vii) The criminal history of a defendant should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence but may be relevant to show that the instant offence has manifested a continuing disobedience of the law or that the offence was an uncharacteristic aberration: Lawrenson Diecasting at 477. The defendant has one prior previous conviction under s 16(1) for which the Chief Industrial Magistrate imposed a penalty of $3,500. Alternatively, or additionally, the prior conviction means the defendant does not get the benefit in mitigation of no prior convictions. It is to be noted that the incident giving rise to that offence occurred after the offence which is the subject of these proceedings. 4. An appropriate subjective circumstance that might be taken into account is cooperation with the authorities: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700 per Kirby P; WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW at par 50. 5. The defendant does not get any benefit from any plea of guilty. 9 Mr Day for the defendant called evidence from Christian Anthony Howard. Mr Howard was a Director of the defendant and was present on the night of the incident which led to the charge being laid against the defendant.

10 Mr Howard's evidence may be relevantly summarised as follows:

1. The nature of the offence leading to a conviction by the CIM. 2. The drafting and publication in 1998 by the defendant of operating procedures to be followed by operators involved in the preparation, setting up, firing and dismantling of fireworks displays. 3. The carrying out of a risk assessment of fireworks displays which led to the purchase and use by the defendant of magnetic protractors for measuring the angle of mortars or trailers. The defendant had also undertaken a re-assessment of shell diameters and safety distances to ensure that the defendant is within the required or recommended safety standards. 4. The defendant is participating in the formation of an industry association, which will address safety as well as other industry issues. 5. That in instructing the defendant's solicitor to enter a plea of not guilty to the charge Mr Howard did not take into account the risk to safety of the north-eastern spectators and that if the risk had been brought to his attention the plea would have been one of guilty. 6. The defendant has taken steps to promote safety in the conduct of fireworks displays by publishing a newsletter titled "Fireworks News". 7. The defendant operated at a loss for the year ended 31 March 2001. The loss was $22,401.36. 8. The defendant's public liability insurer was HIH. The defendant had received correspondence from HIH's provisional liquidator. The liquidator has advised the defendant that it has no insurance cover with respect to proceedings being taken against it by Ms Westphal and other proceedings taken against it in Queensland, which apparently involve a debt of $45,000. 11 In his submissions on sentence Mr Day emphasised the level of cooperation shown by the defendant by cooperating with the WorkCover Authority in investigating the incident that led to the charge being laid. Mr Day also submitted:

1. The conviction of the defendant by the CIM was post the offence which is the subject of these proceedings and it was therefore, open to the Court to consider this offence as a first offence for the purpose of sentencing; 2. The defendant has taken concrete steps to address any shortcomings in its safety practice and procedure for conducting fireworks displays; 3. The offence was at the lower end of the gravity scale; 4. The Court should take account of the defendant's financial position. 12 Mr Day also made a submission on costs to the effect that in awarding costs the Court should take account of the prosecution's use of both senior and junior counsel which, in Mr Day's submission, was unnecessary in the light of the nature of the case. Accordingly, as I understand what Mr Day put, any costs in favour of the prosecutor should be discounted, presumably by removing from consideration the use of junior counsel.

Consideration 13 It falls first to determine the nature and quality of the offence: Lawrenson Diecasting. The industry of conducting fireworks displays seems to me to be inherently dangerous and calls for particular care to be exercised by corporations and individuals engaged in such an industry. The potential for serious injury and even death from the use of fireworks is evidenced by the array of safety requirements in the legislation and subordinate rules that apply to the use and storage of fireworks.

14 Quite apart from the explosive quality of fireworks, which presents it own obvious danger, especially given the size of some of the shells used in fireworks displays, there is the danger to persons from unexploded shells. 15 In relation to the offence that the defendant is found to have committed, there was, of course, no injuries sustained by any spectator. But the gravity of the consequences of an incident or accident 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: Capral at par 94-95.

16 In the earlier judgment in this matter it was found: 52 That it was not unknown to have misfires or malfunctions, including shells that fail to burst, was admitted by Mr Howard. It was standard procedure of the defendant following any fireworks display to check the ground for unexploded shells. Moreover, there was evidence to the effect that shells fired into the air that do not explode will not necessarily return to earth as predicted but may scatter considerable distances.

55 The knowledge of the defendant that shells may fail to burst and that they tend to drift from their predicted path is, in my view, evidence that persons were exposed to risks by attending the fireworks display at Newcastle Showground on the evening of 28 February 1997.

99 In relation to the north-eastern spectators, however, the risk to their health or safety was readily foreseeable. The mortar was pointing in the direction of this group of spectators; the spectators were inside the safety distance of 100 metres set by DG 108; the defendant was required to comply with DG 108 as a condition of its Permit to conduct fireworks displays; the defendant knew that shells could fail to burst; the defendant knew that unexploded shells could deviate from their predicted flight path; the defendant did not know how far the 100mm unexploded shell would travel at a mortar angled at five degrees from the vertical. 17 There was every prospect of serious consequences in terms of injury to spectators from the defendant's failure to conduct the fireworks display safely and without risk to spectators and other persons located north-east of the firing point and within the safety distance of 100 metres.

18 As to the question of deterrence, Hungerford J remarked in Fisher v Samaras Industries Pty Limited at 388: The fundamental duty of the Court in this important area of public concern ….[is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 19 In Capral the Full Bench after referring the remarks by Hungerford J in Fisher v Samaras Pty Limited, said at pars 74-77: 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 75 We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence. ……. 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, 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. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 20 While I have commented that the industry of conducting fireworks displays is an inherently dangerous industry, I do note that the defendant has a remarkably good record, over a long period of time, with only one other conviction. Moreover, in light of the seriousness with which I believe the defendant regards the incident giving rise to the charge against it, I am not inclined to believe that is any great propensity for the defendant to re-offend or that the defendant represents a serious threat to the community. Consequently, in arriving at an appropriate penalty I do not consider that specific deterrence is a major consideration, although I acknowledge "the need to encourage a sufficient level of diligence by the offender in the future" and I note the defendant's previous conviction for an offence under the Act, which I shall come to shortly.

21 I turn to the subjective features of the offence. I have had regard to the fact that the defendant cooperated with the WorkCover Authority in its investigation of the incident, including participation in the testing of shells and in a record of interview conducted by the Authority. I have also had regard to the measures taken by the defendant to improve its safety practices and procedures and regard those as commendable, although I would comment that in addition to the "Operators' Manual" a thorough training program of all personnel involved in conducting fireworks displays would also be appropriate with refresher courses from time to time.

22 I note Mr Howard's evidence that if the risk to north-eastern spectators had been brought to his attention in the course of preparing the defendant's defence the plea would have been one of guilty. As Mr Crawshaw pointed out, however, Mr Howard was present in the Court during the proceedings and the defendant did have the opportunity of changing its plea once it became evident on the first day of the trial that the risk to the north-eastern spectators was part of the charge against the defendant.

23 As to the financial position of the defendant, there was no plea of incapacity to pay and I was not asked to regard the defendant as an individual or sole trader for the purposes of assessing penalty. In Ferguson v Nelmac Pty Limited (1999) 92 IR 188, Wright J, President said: The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. The penalty imposed will reflect the consideration given to this aspect as discussed above. I have also had regard to the submissions filed by the informant in respect of the additional affidavit and issues arising from it. Further, I have considered and applied the authorities referred to therein, particularly Haynes v C I & D Pty Limited (No 2) at 457-458; R v Sgroi (1989) 40 A Crim R 197 and (1989) 43 A Crim R 81.

24 I respectfully agree with and adopt the approach of the President in Ferguson v Nelmac. However, I must say that the nature and quality of the evidence relating to the defendant's financial position was not such that I would be prepared to place great weight upon it.

25 Mr Crawshaw, in his submissions, contended that in determining the maximum penalty to be applied in this case, I should have regard to a conviction of the defendant by the Chief Industrial Magistrate under s 16(1) of the Act arising out of an incident in 1997 but after the incident that led to the charge in the present proceedings. The conviction and penalty by the CIM occurred on 15 June 1998. Mr Day urged on me that I should treat the current offence as a first offence.

26 The significance of what Mr Crawshaw put in relation to the maximum penalty is, of course, that it brings into consideration s 51A of the Act and the maximum penalty to be considered becomes not $500,000 but $750,000: 51A. Additional penalty for further offence against the Act (1) A Court that convicts a person of an offence (the "current offence") against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act---2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act---50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

27 It seems to me that the words of s 51A are plain enough: that if a person is convicted of an offence under, say s 16(1) of the Act, the Court may, if the person has previously been convicted, impose as additional penalty 2,500 penalty units in the case of a corporation. Notwithstanding the fact that the incident that gave rise to the charge before the CIM was after the incident which is the subject of the present proceedings, the defendant stands previously convicted.

28 As Mr Crawshaw submitted, if I were to treat the current offence as a first offence it would produce the situation of two first offences, namely, the offence of which the defendant was convicted by the CIM and the current offence.

29 I propose to treat the conviction of the defendant by the CIM as a previous conviction within the meaning of s 51A of the Act. In doing so however, I note the relatively slight penalty imposed for the previous conviction.

30 There was no plea of guilty and in this respect no discount is available.

31 In all the circumstances, I consider an appropriate penalty in this case to be $55,000.

32 As to the question of costs, Mr Day contended that this was not a case warranting the prosecutor being represented by both senior and junior counsel. Mr Crawshaw submitted on the other hand, that the case was not without its factual complexities, including expert reports and expert oral evidence from both sides. Further, that the presence of junior counsel for the prosecution allowed the proceedings to be completed within three days and thereby avoided additional costs being incurred through an adjournment to prepare written submissions.

33 As the transcript of proceedings reveals, junior counsel for the prosecutor was involved in drafting a written submission overnight after the second day of proceedings and which I found most helpful. On the final day Mr Crawshaw was left to complete his cross-examination of the defence's final expert witness Dr Green and supplementary oral submissions by the prosecution were relatively brief. It may well have been the case that proceedings would not have concluded on the third day but for junior counsel's presence.

34 Nevertheless, with some hesitation brought about by a reluctance to interfere with a party's choice as to the level of representation in a case that initially may have threatened to be quite complex, in exercising my discretion I am prepared to discount the costs order to the extent of 20 per cent.

35 I find the defendant guilty of the offence charged and enter a verdict accordingly. I order that the defendant is convicted and is fined an amount of $55,000 with a moiety to the prosecutor. The defendant is ordered to pay 80 per cent of the prosecutor's costs in an amount as agreed or assessed. 36

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