Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 (22 April 2004)

Last Updated: 27 April 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100

FILE NUMBER(S): IRC 5346

HEARING DATE(S): 13/04/2004

DECISION DATE: 22/04/2004

PARTIES:

PROSECUTOR

Inspector Frank Glass

DEFENDANT

Foamex Polystyrene Pty Limited

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr P M Strickland of counsel

Solicitor: Mr G Diggins

WorkCover Authority of New South Wales

DEFENDANT:

Mr A T Britt of counsel

Agent: Mr B O'Donnell

Australian Industry Group

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29

Ferguson v Nelmac Pty Ltd (1999) 92 IR 188

R v Mansour [1999] NSWCCA 180

R v Previtera (1997) 94A Crim R 76

R v Thompson; R v Houlton (2000) 49 NSWLR 383

WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Occupational Health and Safety Act 2000

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Thursday 22 April 2004

Matter No IRC 5346 of 2003

INSPECTOR FRANK GLASS V FOAMEX POLYSTYRENE PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2004] NSWIRComm 100

1 Foamex Polystyrene Pty Limited ("the defendant") operated a business involving the production of moulded plastic products at 31 Mavis Street Revesby in the State. The defendant employed 22-year-old Benjamin Andrew Crabb as a factory hand/process worker. On 14 December 2001, some 12 days after he had commenced employment with the defendant, Mr Crabb was crushed to death in a moulding machine.

2 The defendant was prosecuted by Inspector Frank Glass of the WorkCover Authority of New South Wales under s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provides that:

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

3 The charge in the application for order alleged that the defendant failed to:

Ensure the health, safety and welfare of its employees and in particular, Benjamin Andrew Crabb (“the deceased”) contrary to section 8(1) of the Occupational Health and Safety Act 2000 in that the deceased was fatally injured whilst cleaning a pod machine called Minute Man 1 (“the machine”) on the defendant’s premises by reason of:

(a) The defendant failed to ensure that plant operated by the deceased was safe and without risk to health in that there was a deficiency with the guarding of the machine in that the dangerous part of the die and platen could be accessed from a number of sides of the machine.

(b) The defendant did not ensure that the system of work was safe and without risks to health in that it did not provide a safe isolation and tagging policy or procedures for persons entering the danger areas of the machine.

(c) The defendant failed to ensure that any plant provided for use by the employees at work were safe and without risks to health when properly used in that the operation of the machine was controlled through a Programmable Logic Controller which had an eject cycle which was not wired in a fail-safe manner.

(d) The defendant failed to provide such information, instruction, training and supervision as may be necessary to ensure the employees health and safety at work in that:

(i) It did not supervise or train or adequately supervise or train its employees in the safe use and handling of isolation procedures on the machine or on electrical switch panels and equipment; and

(ii) It failed to provide sufficient training and supervision for the safe cleaning of the machine.

4 The defendant pleaded guilty to the charge and an agreed statement of facts was tendered to the Court. The following facts may be derived from the agreed statement:

(a) In the course of or as part of his employment, Mr Crabb was required or permitted by the defendant to operate and/or maintain a foam plastic moulding machine (“the machine”). The tasks performed by the Mr Crabb included the off-loading and subsequent stacking, strapping and movement of product from the machine and cleaning of the machine.

(b) The machine was still in a developmental stage. The machine was leased from Treffner Engineering by Foamex Pty Ltd who then provided it to the defendant.

(c) The machine operated in the following manner:

(i) Pre-expanded foam balls were fed from silos outside the factory into the hopper above the machine.

(ii) When the machine was activated, the platen, which is a flat steel plate, closed to a pre-compression position and foam balls were blown into the die via the hopper chute.

(iii) The platen moved forward towards the die in order to compress the foam balls and steam was supplied to the die to make the finished product (or pod).

(iv) After a pre-determined time and pressure the steam was shut off and air was introduced into the die to aid cooling. Once set, a vacuum was applied to the platen via slots in the steel plate and the platen removed.

(v) The finished product was drawn from the mould with the platen and dropped down to the floor when the vacuum was removed.

(d) At the commencement of the day, the person operating the machine was required to grease the platen seal and locks and clean out the slots in the platen. To clean out the slots the operator usually climbed into the space between the platen and the die block and used a strip of plastic to remove any build up from the slots. It was also necessary, from time to time, for the operator to climb into the space between the platen and the die block during the production run to scrape out a damaged or malformed pod stuck in the mould. A pod is the product that the machine was making. The operator was expected to enter the die area through an interlocked gate. However, access to the die block area was possible from several other areas.

(e) At the front of the machine was a control panel which had an extract or eject button. When someone pushed the extract button, an electric signal was sent to the Programmable Logic Controller (PLC), which had an eject cycle. The eject cycle was a back up system which was used to remove the pods if they were stuck in the die block. If someone pressed the extract button and the cam locks (or platen locks) were in the open position, the eject cycle would operate from the starting sensor position. If that occurred, the motor drove the platen into the die block, a vacuum was applied and the motor reversed moving the platen away from the die block thereby releasing the pod from the machine.

(f) The machine had an isolation switch on the side of one of the control panels. If that switch was turned off, the machine could not operate. There was no means by which an operator of the machine could turn the isolation switch off and ensure that it was kept off whilst he or she was cleaning out the slots.

(g) On the morning of Friday 14 December 2001, Mr Crabb attended the machine to start greasing the seal and cleaning the slots in the platen. There was no air pressure on the machine at the time because the main air compressor, located at the front of the factory about 115 metres from the machine, had not been switched on and was not operating. Mr Crabb attempted to run the platen back to the fully opened position so that he could climb into the machine to clean it. There was insufficient room for a person to climb into the machine in order to clean it unless the platen was back to the fully opened position of the starting sensor.

(h) The platen did not open and after several attempts to resolve the matter Mr Crabb sought help. He sought assistance from Syedabdul Qavi and then Andrew Brazakovski. Mr Brazakovski returned with Mr Crabb to the machine to sort out the problem. Mr Brazakovski opened the platen to the maximum position (which is indicated by way of a handwritten line on the machine) by accessing the control box and manually pressing the contactor controlling the platen drive motor. Mr Brazakovski did not turn off the main isolating switch.

(i) Mr Brazakovski then left the machine to turn on the air compressor but did not complete that task as Keith Short had in the meantime turned on the air compressor.

(j) In the intervening period Mr Crabb entered the die area of the machine to commence cleaning the slots. At some stage before he had entered the die area, the eject cycle had been activated by someone pressing the extract or eject button.

(k) After the air pressure was turned on, the air pressure rose in the air solenoids controlling the platen locks. This caused the platen locks to lift to the open position. Once the locks were opened, a signal was sent to the PLC to commence the eject cycle because the PLC had stored in its memory the order to commence the eject cycle in those circumstances. When the eject cycle started up, the platen motor started up, driving the platen forwards and fatally crushing Mr Crabb between the die block and the platen.

(l) There was a deficiency with the guarding of the machine in that the dangerous part of the die and platen could readily be accessed from a number of sides of the machine including from underneath an interlocked side gate installed on the right hand side of the machine. This deficiency had been drawn to the attention of the defendant on 22 March 2000 when the factory supervisor, Mr Vanden Hoogen, submitted to the General Manager of the defendant, Mr Hillar Treffner, a memorandum outlining his concerns. That memorandum was in the following terms:

I know we been busing (sic) with changing the boiler etc, etc. But I have to warn you, that the safety guards etc have to be fitted to the Pod Machine, as required by WorkCover.

It is my duty to inform you in writing, because if WorkCover inspectors come into this factory, I will be fined as well as the Company, for allowing this machine to operate, without the appropriate guards.

Please do something soon.

(m) Subsequent to the memorandum, the defendant installed the abovementioned interlocked gate on the right hand side of the machine. The front and left hand side of the machine remained unguarded.

(n) The effective operation of the limited guarding fitted to the machine by the defendant relied on operators such as Mr Crabb entering the die area only via the interlocked right hand side gate. Access by such means would have disabled the machine by interrupting its power supply.

(o) The defendant did not provide or maintain a safe isolation and tagging policy or procedures for persons entering the danger area of the machine.

(p) The defendant did not supervise or train or did not adequately supervise or train its employees including Mr Crabb in the safe use and handling of isolation procedures on the machine or on electrical switch panels and equipment.

(q) The operation of the machine was electrically controlled through a PLC which had an eject cycle which was not wired in a fail-safe manner. The PLC retained in its memory the order to start the eject cycle even though the machines appeared to be switched off.

(r) The defendant failed to provide sufficient training and supervision for the safe cleaning of the machine.

(s) The defendant failed to provide a safe system for the cleaning of the machine.

(t) The accident could have been avoided by:

(i) The defendant guarding or interlocking all sides of the machine to ensure that the dangerous part of the die and platen could not be accessed unless the machine was isolated;

(ii) The defendant providing and maintaining safe isolation and tagging procedures for persons cleaning the machine;

(iii) The defendant providing sufficient training and supervision to its employees in the safe use and handling of isolation procedures on the machine or on electrical switch panels and equipment;

(iv) The defendant ensuring that the PLC had an eject cycle which was wired in a fail-safe manner;

(v) The defendant providing a risk assessment to determine a safe system of cleaning the machine;

(vi) The defendant providing a safe system for the cleaning the machine.

(vii) The defendant providing sufficient training and supervision for the safe cleaning of the machine.

5 In addition to the agreed statement of facts the prosecutor also provided to the Court three victim impact statements by Mr Crabb's mother, father and sister. I shall return to those statements shortly.

6 The defendant tendered three affidavits that were read. The first was by Charles Treffner, a director and shareholder of the defendant, and the second by Hillar Treffner, also a director and shareholder of the defendant and the general manager of a related company, Foamex Pty Ltd. The third affidavit was that of Robert Craft, operations manager for the defendant but an employee of Foamex Pty Ltd. None of the deponents were required for cross-examination.

7 Mr Charles Treffner's affidavit went to the design and operation of the moulding machine and sought to explain how the accident might have happened. Mr Treffner deposed that after the accident the machine was taken out of production and access to the mould was closed off by additional guards. Access to the mould via the pod discharge was blocked by an electronic curtain, which disables the machine upon any attempt to enter. Lockout procedures have been redoubled and, according to Mr Treffner, strictly enforced.

8 The affidavit of Mr Hillar Treffner addressed the following matters:

(a) The background to the defendant and its related companies, including the structure of those companies and the financial arrangements between them;

(b) Profit and Loss Statements for Foamex Pty Ltd and the defendant for the years ending 30 June 2000 up to 30 June 2003;

(c) The defendant's safety profile prior to the accident;

(d) The engagement by the defendant of Benjamin Crabb and his work responsibilities;

(e) The defendant's remorse;

(d) Steps taken by the defendant immediately after the accident;

(e) Cooperation with WorkCover;

(f) Modifications made to the machine;

(g) Changes implemented by the defendant to its operations and safety policies and procedures.

9 Mr Robert Craft's affidavit addressed the following matters:

(a) The deponent's personal and employment background;

(b) The deponent's assignment to review the policy and procedures and employee training in relation to occupational health and safety for the defendant;

(c) The training arrangements and new safety policies and procedures introduced by the defendant after December 2001;

(d) The introduction of risk assessments;

(e) The introduction of a system of safety auditing.

10 I am satisfied on the evidence, including the agreed statement of facts that the plea of guilty was properly made. A verdict of guilty is entered and the defendant is convicted of the offence under s 8(1) of the Occupational Health and Safety Act 2000 as charged.

Consideration

11 The initial consideration in sentencing is the gravity of the offence viewed objectively. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. The maximum penalty in this case is $550,000. A consideration of subjective features of the offence, that is the facts concerning the offender, will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified.

12 As well as considering the objective and subjective circumstances of the offence the Court, in sentencing an offender, is required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors. The Court is not required to increase or reduce the sentence for the offence merely because a specified aggravating or mitigating factor is relevant or known to the Court: s 21A (5) of the Crimes (Sentencing Procedure) Act.

13 The risks to safety in this case arose out of:

(a) the inadequate guarding of the moulding machine;

(b) the inadequate safe isolation policy in entering the danger area of the machine; and

(c) the absence of proper training or information to employees engaged in operating, including isolation procedures, and cleaning the machine.

14 In relation to the inadequate guarding, on 22 March 2000, the factory supervisor warned the defendant about the need to have safety guards etc., fitted to the machine as required by WorkCover. Consequently, the defendant installed an interlocked gate on the right side of the machine, but for some inexplicable reason the front and left hand side of the machine remained unguarded. The defendant was, therefore, aware of the requirement to guard and took some steps in that respect but they were wholly and obviously inadequate, leaving it open to any person who, for one reason or another, did not wish to enter the die area through the interlocked gate, to do so from other approaches. Thus, a machine capable of causing death was left operating without adequate guarding.

15 In addition to the failure to properly guard, the defendant did not provide or maintain a safe isolation and tagging policy or procedure for persons entering the danger area of the machine. This failure was referred to in the agreed statement of facts as follows:

At the front of the machine was a control panel which had an extract or eject button. When someone pushed the extract button, an electric signal was sent to the Programmable Logic Controller (PLC), which had an eject cycle. The eject cycle was a back up system which was used to remove the pods if they were stuck in the die block. If someone pressed the extract button and the cam locks (or platen locks) were in the open position, the eject cycle would operate from the starting sensor position. If that occurred, the motor drove the platen into the die block, a vacuum was applied and the motor reversed moving the platen away from the die block thereby releasing the pod from the machine.

The machine had an isolation switch on the side of one of the control panels. If that switch was turned off, the machine could not operate. There was no means by which an operator of the machine could turn the isolation switch off and ensure that it was kept off whilst he or she was cleaning out the slots.

16 Thirdly, the defendant failed to train and supervise its employees in the safe use and handling of isolation procedures and in cleaning the machine. Part of Mr Crabb's duties was to clean the slots and grease the machine prior to start up. Apart from general safety instructions by way of induction and an instruction not to operate the machine, Mr Crabb received no other training or instruction relating to the machine. Further, there was no evidence that Mr Brazakovski or Mr Short had received appropriate training in relation to the inherent dangers associated with operating and cleaning the machine.

17 So a situation existed where a machine was inadequately guarded, where no system was in place that would ensure that a person cleaning out the slots in the die block would not be put at risk by someone activating the machine and where employees were not adequately trained or supervised in the safe operation and safe cleaning of the machine. The consequence of these gross failures on the part of the defendant was the death of a young man, bringing with it tragedy and heartbreak to his family.

18 The consequences of a breach of the Act, however, are not the measure by which the amount of penalty is to be determined because it is the gravity of the detriment to safety that must be the Court's focus. The consequences, however, may be a measure of the seriousness of the risk and in this case that is so. Moreover, a relevant aggravating factor to be taken into account by the Court pursuant to the requirements of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act is that "the injury, emotional harm, loss or damage caused by the offence was substantial."

19 An offence under s 8(1) of the Act will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practicable steps were available to avoid the risks, but these steps were not taken. In the present case the defendant submitted that:

The risk arose as a result of a chain of events as described in ... the Agreed Statement of Facts. It is conceded that a number of the steps in the chain did present a “readily” foreseeable risk. However, one step in this chain related to PLC operation and its stored memory in the particular circumstances that led to the actual risk of the accident that occurred on 14 December 2001. It is submitted that the Defendant could not describe the behaviour of the PLC in these circumstances as “readily” foreseeable. Therefore, if this step in the chain is not “readily” foreseeable then the actual risk cannot be.

20 It seems to me that in circumstances where a machine capable of causing death is not adequately guarded, where employees are not adequately trained and supervised in the safe operation and safe cleaning of the machine, and where there is no system in place to ensure the machine cannot be set in operation whilst cleaning is being undertaken, the ordinary person in the street would foresee that the machine presented a real risk to safety. Moreover, in this case the defendant knew that the machine needed to be guarded and whilst it took some steps in this respect, persons could still access the die area of the machine without any real difficulty.

21 The steps available to avoid any risks to safety from the machine were not difficult or prohibitively expensive. Indeed, they were simple, straightforward, commonplace measures and, as the prosecutor submitted, involved the following:

(a) Guarding and interlocking all sides of the machine;

(b) Providing and maintaining safe isolation and tagging procedures for persons cleaning the machines;

(c) Providing sufficient training and supervision to its employees in the safe use and handling of isolation procedures on the machine and on electrical switch panels and equipment;

(d) Ensuring the PLC had an eject cycle which was wired in a fail-safe manner;

(e) Providing a safe system for the cleaning the machine;

(f) Providing sufficient training and supervision for the safe cleaning of the machine.

22 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 at [74] the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence the Full Bench added at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable."

23 There can be no doubt that this offence was serious. The prosecutor submitted it was a case approaching the worst case. I do not subscribe to that view. However, I must say it is one of the more serious offences I have had to deal with and any penalty must reflect the fact that substantial weight has been placed on the need to deter others from committing offences under the Occupational Health and Safety Act by drawing attention to the absolute obligation on employers to ensure that employees are not subjected to risks to their health and safety. And that if they fail to meet that obligation and serious injury or death is the result, the penalty can be very substantial.

24 The circumstances in which this offence occurred is an everyday feature of manufacturing industry in this State; relatively small factories with a range of machinery including presses, milling, boring and grinding machines and moulding machines, all capable of inflicting grievous injury unless properly guarded and safely operated. In many cases the machines are operated or cleaned by persons who do not possess great experience, skills or understanding of the machinery and in respect of such persons special care has to be exercised by employers to ensure their health and safety is protected. An appropriate penalty in this case should serve to remind manufacturers and engineering shops of their critical obligations under the occupational health and safety laws.

25 I have also had regard to the need for specific or personal deterrence. The propensity for the defendant to re-offend is not high in my opinion. No doubt the death of Mr Crabb came as a tremendous shock to the directors and shareholders of this defendant and has awakened them to the need for constant vigilance when it comes to issues of safety in the workplace. Furthermore, including the defendant's predecessors, this is the defendant's first offence in nearly 50 years of being in business. The defendant has also taken what I consider to be appropriate steps to ensure there is no re-occurrence of the incident on 14 December 2001. I do not propose to include in the penalty a significant element for specific deterrence.

26 The Court is required to take into account the fact that the defendant pleaded guilty and when the plea was entered: s 22 of the Crimes (Sentencing Procedure) Act. The prosecutor concedes that the defendant's guilty plea was entered at the earliest opportunity and in those circumstances I propose to discount any penalty by 25 per cent for the utilitarian value of that plea: R v Thompson and R v Houlton (2002) NSWLR 383.

27 Mitigating factors that are relevant include the defendant's good character, the assistance provided to WorkCover in the investigation of the incident and the remorse of the directors of the defendant. Further, after the accident, the defendant undertook a number of significant steps to improve the safety of the machine; the isolation procedures; the electrical circuitry in the eject cycle; and, the training of its employees. The defendant also introduced comprehensive new safety policies and procedures. The defendant has no prior convictions.

28 The defendant is a relatively small company. The burden of the fine imposed by the Court will fall on this family group. Subject to what I say shortly, it is appropriate to take this fact into account in fixing any penalty but that does not necessarily result in the Court not imposing a heavy penalty: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209.

29 The defendant conceded that between it and Foamex Pty Ltd, it has the means to pay a moderate fine but not the capacity to pay a substantial fine. In considering the relationship between the defendant, which is the manufacturing company, and Foamex Pty Ltd, which is the management company, three brothers, namely Charles, Peter and Harry Treffner and their nephew, Hillar Treffner, own the two companies (plus a related partnership, Treffner Engineering), with equal shareholdings. At the time of the accident Foamex Pty Ltd employed seven employees and the defendant employed nine employees.

30 Foamex Pty Ltd charges the defendant a management fee for administration. Management fees for the last four financial years were as follows:

Year

Fee

$

Sales

$

Fee as a % of Sales

2002-2003

2,394,850

7,710,399

31

2001-2002

915,500

4,112,576

22

2000-2001

662,643

1,973,705

34

1999-2000

851,300

2,098,273

41

31 Mr Hillar Treffner deposed in his affidavit that:

There had been no shareholder drawings from either (sic) Foamex Polystyrene from 1999 until the year ending 2003. I am the only shareholder/Director that has been on a salary for my role as the General Manager.

32 The net profit of the defendant after tax in 2002-2003 was $15,369 and in relation to Foamex Pty Ltd was $341,762.

33 Section 6 of the Fines Act 1996 provides:

Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

34 The Fines Act requires the Court to consider "the means of the accused". "Means" is not, in my opinion, limited to the net profits of a corporate defendant but refers to the resources that the defendant may draw upon to pay any fine imposed by the Court.

35 The defendant submitted that the defendant was a small family owned company where the burden of the fine would fall upon the members of the family. The family, of course, owns three companies including Foamex Pty Ltd, to which the defendant paid a management fee of $2,394,850 in 2002-2003. It does not seem to me that on the one hand, the defendant can plead limited capacity to pay a substantial fine on the grounds that members of the Treffner family will have to bear the burden of that fine and on the other hand contend that the Court should discount the fact that Foamex Pty Ltd, which the Treffner family owns, received nearly $2.4 million in management fees from the defendant in 2002-2003.

36 I am not convinced the defendant does not have the means to pay a substantial fine. But in any event, as Wright J, President observed in Ferguson v Nelmac at 209:

The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty...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.

Victim impact statements

37 Part 3, division 2 of the Crimes (Sentencing Procedure) Act deals with victim impact statements. Sections 28 to 30A of that Act are in the following terms:

28 When victim impact statements may be received and considered

(1) If it considers it appropriate to do so, the Supreme Court, Industrial Relations Commission or District Court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.

(2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.

(3) If the primary victim has died as a direct result of the offence, the Supreme Court, Industrial Relations Commission or District Court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate.

(4) Despite subsections (1), (2) and (3), the Supreme Court, Industrial Relations Commission or District Court:

(a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and

(b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.

(5) The Supreme Court, Industrial Relations Commission or District Court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.

(6) In relation to a victim impact statement given by a family victim, this section applies to a Local Court in the same way as it applies to the Supreme Court, Industrial Relations Commission and the District Court.

29 Victim impact statements discretionary

(1) The giving of a victim impact statement is not mandatory.

(2) A victim impact statement may not be received or considered by a court if the victim or any of the victims to whom the statement relates objects to the statement being given to the court.

(3) The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim.

30 Formal requirements for victim impact statements

(1) A victim impact statement must be in writing and must comply with such other requirements as are prescribed by the regulations.

(2) If a primary victim is incapable of providing information for or objecting to a victim impact statement about the personal harm suffered by the victim, a member of the primary victim’s immediate family or other representative of the victim may, subject to the regulations, act on behalf of the victim for that purpose.

(3) A court may receive and consider a victim impact statement only if it is given in accordance with and complies with the requirements prescribed by or under this Division.

30A Reading out victim impact statements in court

(1) If a victim impact statement has been duly received by a court, a victim to whom it relates, or a member of the immediate family, or other representative, of the victim, is entitled to read out the whole or any part of the statement to the court.

(2) The statement may be read out at such time as the court determines after it has convicted, but before it sentences, the offender.

38 In R v Mansour [1999] NSWCCA 180 at [7] it was held by Spigelman CJ (with whom Studdert and Adams JJ agreed) that it was entirely appropriate for trial judges to acknowledge the impact of crime on victims and their families in a public way, giving public recognition of the grief imposed. At [3] to [7] of the judgment the Chief Justice said:

3 The first ground of appeal was an allegation that the sentencing judge took into account irrelevant material. This is based on the following comments by his Honour during the course of his remarks on sentence. His Honour said:

"I think it is fair to say that the result of this collision and the loss of that young lady's life has caused what can only be described as immeasurable grief to her family. The material in the form of Victim impact statements supports that situation".

4 This passage in his Honour's reasons occurs immediately after his summary of the facts and immediately before his reference to the case in Jurisic (1998) 45 NSWLR 209 and to the sentencing guidelines therein contained, to which I will further refer. It was submitted that his Honour's reference to "immeasurable grief" indicated that his Honour had taken into account an irrelevant consideration in arriving at the sentence. This submission should be rejected.

5 In Bollen (1998) 99 A Crim R 510, Hunt CJ at CL referred to his earlier decision in Previtera (1997) 94 ACrimR 76 to the effect that the Victim Impact Statement is not relevant to sentence. When applying the principle to the facts before him in the case of Bollen, however, his Honour said:

"When referring to the Victim Impact Statements, the judge said that the consequence of the crime committed by the Appellant was that the community had lost one of its number and the Groves family had lost a loving member - one who was a husband, father, son and brother. I see nothing wrong with that statement. It does no more than recognise the value which the community places upon human life. However, the judge then said that he had 'borne in mind' the seven statements filed, the material which they contained about the deceased and the reaction of the respective authors of those statements to his death. He went on to describe the statements as useful because of the involvement which they permitted of the family 'in a criminal justice process' and also because 'they helped remind the sentencing judges that the loss of any individual has real effect upon others'. He referred to the counselling and medical attention they had received, and continued:

'Naturally, the seven statements were written at a time when the authors anticipated the verdict would be murder. They will, of course, understand that the prisoner must be dealt with consistently with the jury's verdict, and also that I must proceed dispassionately no matter how strongly they feel.'

I am satisfied that, by bearing this material in mind and by having regard to the particular effects of the death of the deceased upon the members of his family, the judge had taken irrelevant material into account and thus fallen into error."

6 In the present case, there is no language in the judgment which would suggest that Viney DCJ had taken into account the contents of the victim statements in the manner referred to above. Rather, the reference to "immeasurable grief" is equivalent to the "recognition of impact", referred to by Hunt CJ at CL in the first three sentences of the above extract from Bollen.

7 It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims. Unlike Bollen, there is nothing in the judgment to suggest that his Honour gave this consideration weight in determining the sentence eventually imposed. To infer that he did so would be to draw an inference from what is submitted to be a manifestly excessive sentence, but if it is a manifestly excessive sentence then it falls for that reason, rather than by reason of some inference about his Honour's reasoning process that can be derived from its manifestly excessive character.

39 As I adverted to earlier, the Court received three victim impact statements. The first was by Amanda Jayne Crabb, the younger sister of Benjamin Crabb. Ms Crabb described the shock of being told by the police of her brother's death and how having to tell their mother of the death was the hardest thing she'd ever had to do. She described the family's deep sadness and sense of loss over the few days after Benjamin's death and how hard it was for the family over Christmas that year. Ms Crabb described the sense of loneliness in the months after her brother's death, how disrupted her life became, how she sought counselling and how sad and angry she was "for so long that I didn't think it was ever going to end." Ms Crabb said:

Ben's death has completely changed my life. I no longer have an older brother, someone to look after me and make mistakes before me. I am on my own now. This emptiness and loneliness still surrounds me today and I don't believe it will ever go away.

40 The second statement was by Benjamin's mother, Judith Anne Crabb. Mrs Crabb described how angry and upset she was at the way she found out about her son's death and her desperate need "to cuddle him - to touch him" but was told she could not do so until after the autopsy. Mrs Crabb said that she lost touch with reality, lost her appetite and could not sleep. She said that "My whole world was focused on the horrific circumstances that took my son's life." Mrs Crabb described how her health had been adversely affected and the misery that has followed her son's death. She was unable to return to work for four months. Mrs Crabb said:

I miss my son. I am afraid for the future. Afraid, in part, that I will never know happiness again. My life will never be the safe sure place it once was. The pain and grief I feel will never go away.

41 The third statement was by Benjamin's father, Steven Crabb. Mr Crabb said his son's death "horrified and devastated me" and that he has regular nightmares about his son entering the machine that killed him and trying to stop him. He said "I see his mangled body and cry a lot."

42 Mr Crabb said:

I miss Ben terribly and am aware of the desolating effect his death has had on my wife, daughter, family and friends. He was very much loved.

43 The Court extends its sympathy to Mr and Mrs Crabb and their daughter Amanda and acknowledges the terrible impact that Benjamin's death has had on them and which they are never likely to fully overcome. I am constrained, however, from taking into account the contents of the victim impact statements in coming to a conclusion as to what is the appropriate sentence in this case: R v Previtera; R v Mansour. The fact, however, that the Court is required in the case of a death, to receive a victim impact statement given by a family victim and acknowledge its receipt, and that the Court may make any comment on it that the Court considers appropriate, may help in releasing some of the family's grief and, importantly, it assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace.

Penalty

44 Fixing an appropriate penalty in this case has not been easy. The objective seriousness of the offence calls for a penalty at the high end of range but any penalty must not be fixed at such a level that it will be oppressive. I have decided that an appropriate penalty in this case, given its objective features, is $320,000. This amount is discounted by 25 per cent for the utilitarian value of the guilty plea and by a further 10 per cent for the subjective factors. This results in a penalty of $208,000.

Orders

45 The Court confirms that a verdict of guilty is entered and the defendant is convicted of the offence under s 8(1) of the Occupational Health and Safety Act 2000 as charged. Further:

1. The defendant is fined an amount of $208,000 with a moiety thereof to the prosecutor.

2. The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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LAST UPDATED: 23/04/2004