Inspector Amanda Templeton v Twynam Investments Pty Ltd [2004] NSWIRComm 169 (25 June 2004)

Last Updated: 28 June 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Amanda Templeton v Twynam Investments Pty Ltd [2004] NSWIRComm 169

FILE NUMBER(S): IRC5345

HEARING DATE(S): 26/05/2004

DECISION DATE: 25/06/2004

PARTIES:

Prosecutor:

Inspector Templeton

Defendant:

Twynam Investments Pty Ltd

JUDGMENT OF: Kavanagh J

LEGAL REPRESENTATIVES

Prosecutor:

Mr D. B. O'Neil of counsel

Solicitors:

Ms L. Barnes

WorkCover Authority of NSW

Defendant:

Mr I. M.Neil of counsel

Solicitors:

Mr E. Haggerty

Toomey Pegg Drevikovsky

CASES CITED: Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Insp Swee Ch'ng) (1999) 90 IR 464

Ferguson v Nelmac (1999) 92 IR 188

Tyler v Sydney Electricity (1993) 47 IR 1

Haynes v James Glass and Aluminium Pty Limited (unreported decision of Fisher CJ, CT91/772-775, 20 May 1994)

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29

WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (unreported decision of Maidment J, CT93/1062, 26 November 1993)

Previtera v R (1997) 94 A Crim R 76

R v Slack [2004] NSWCCA 128

LEGISLATION CITED: Occupational Health and Safety Act 2000

Crimes (Sentencing Procedure) Act 1999

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: KAVANAGH J

Date: Friday 25 June 2004

IRC5345 of 2003

INSPECTOR TEMPLETON v TWYNAM INVESTMENTS PTY LTD

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2004] NSWIRComm 169

1 This prosecution is brought by Inspector Amanda Templeton of the WorkCover Authority of NSW against Twynam Investments Pty Limited. The prosecution issued under s8(1) of the Occupational Health and Safety Act 2000 (the OHS Act).

2 It is alleged the defendant breached s8(1) of the OHS Act in that the defendant failed:

To ensure the health, safety and welfare at work of all employees of the defendant, in particular Raymond Milne, contrary to Section 8(1) of the Occupational Health and Safety Act 2000.

3 The particulars of the charge are:

a) The Defendant, at all material times, operated a farm at Gundaline Farm Centre, Gundaline Station, Carrathool, in the State of New South Wales (“the property”).

b) The Defendant, at all material times, employed a number of workers, including Raymond Milne (“Milne”), to work at the property.

c) The Defendant, at all material times, operated plant at the property, namely, an automatic trash rake machine (The “rake machine”).

d) The Defendant failed to ensure that the plant, namely the rake machine, was safe and without risk to health to all employees, in particular, Milne, by:

(1 failing to install a guard or fence to prevent employees from accessing moving parts of the rake machine, and in particular, the moving scraper bar;

(2 failing to install the walkway crossing the channel in such a position that it would not be possible for employees to access moving parts of the rake machine, and in particular, the moving scraper bar.

e) The Defendant failed to provide and maintain safe systems of work for all employees, in particular Milne, for the inspection and maintenance of the rake machine, by:

(1 failing to provide and maintain a system of isolating the rake machine during inspection and maintenance on the rake machine;

(2 failing to provide and maintain a system for lockout/tagging of rake machine;

(3 failing to undertake a risk assessment for the inspection and the maintenance of the rake machine.

f) The Defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the safety of all it’s employees, in particular Milne, by:

(1 failing to adequately or at all instruct and train its employees, in particular Milne, as to the safe and correct procedures for the inspection and maintenance of the rake machine;

(2 failing to adequately or at all supervise employees servicing or repairing the rake machine, such that a person could access moving parts of the rake machine, in particular the moving scraper bar during the inspection of the rake machine;

(3 failing to provide any or any adequate information to employees, in particular Milne, as to the safe and correct procedures for the inspection and maintenance of the rake machine;

(4 failing to adequately or at all train supervisors in the identification of risks associated with the rake machine.

g) As a result of the said failures, Raymond Milne was fatally injured.

4 An amended Agreed Statement of Facts was tendered which relevantly reads as follows:

2) At all material times, Twynam Investments Pty. Limited [ACN NO: 000 573 213] was a company duly incorporated with its registered office at Level 7, 17 - 19 Bridge St, Sydney, in the State of New South Wales, being an employer, at Gundaline Farm Centre, Gundaline Station, Sturt Highway, Carrathool in the said State.

3) The Defendant operates over fifteen properties in the State of New South Wales and is one of the largest cotton, rice and wheat growers in Australia.

4) The Defendant, at all material times, operated a farm at Gundaline Farm Centre, Gundaline Station, Carrathool, in the State of New South Wales (“the property”).

5) The Defendant, at all material times, employed a number of workers, including Raymond Milne (“Milne”), to work at the property.

6) Milne was employed by the Defendant as a farm hand from about 5 April 1993, becoming a permanent employee as an intermediate farmer/plant operator on 30 June 1998 and was employed by the Defendant in that position on 26 September 2001 (“the accident date”).

7) As part of his duties, Milne was required to inspect and maintain the rake machine.

8) The rake machine was owned by Twynam (Gundaline) Pastoral Company Pty Ltd and had been purchased from Batescrew Sales Pty Ltd in about 1986 and used at the property for approximately 15 years prior to the accident date.

9) The rake machine is situated over a culvert that traverses an irrigation channel on the property, the channel being approximately two metres wide at that point. Water from the irrigation channel enters a pump that removes water from the channel to other locations. The rake machine is designed to remove debris from the irrigation channel in order to prevent it from entering the pump.

10) The rake machine has scraper bars hydraulically driven by chains on either side of the rake machine to carry debris up a fixed steel plate. The scraper bars, located about 1.5 metres apart, move through the water and use metal “fingers” to collect debris which is then deposited onto a conveyor running across the channel, which then deposits the debris into a pile on the western side of the bank.

11) On the accident date, a grid mesh walkway was positioned to run across the irrigation channel passing under the top portion of the rake machine (“the walkway”). A person standing on the walkway could access the moving parts of the rake machine, in particular the scraper bars.

12) At some points on the rake machine, accessible to a person standing on the walkway, the scraper bars pass a number of “C” section cross braces welded on the underside of the rake machine. As the scraper bars pass the braces a nip point is created.

13) The scraper bars are moved by hydraulic chains that are lubricated by oil dripper cans located on either side of the rake machine (“the drippers”).

14) On the accident date, Milne commenced work at approximately 7.30 am. He met with the manager of the property, Chris Barry (“Barry”) and another employee of the Defendant, the equipment overseer, Graham Hunt (“Hunt”) at the workshop on the property.

15) At that meeting, Barry requested Hunt and Milne to inspect the rake machine that day and undertake any maintenance that may be required in order to make the rake machine operational. The servicing of the rake machine was usually carried out on a daily basis during the season between September and March each year. On the accident date, the service of the rake machine was to prepare it for use in the upcoming season. Until the date of the accident, the rake machine had not been in operation since the previous season. Part of the maintenance required for the rake machine was to ensure that the drippers were working.

16) Hunt and Milne attended the rake machine in the morning on the accident date to undertake maintenance. Around lunch-time both Hunt and Milne left the rake machine and Hunt proceeded to go for his lunch break.

17) At some point in the afternoon, Milne returned alone to the rake machine. Milne later told the Ambulance Officer that the rake machine was operating while he was checking the machinery. He was struck on the back of the neck and shoulders by a scraper bar which subsequently jammed his neck and shoulder between the moving scraper bar and the fixed “C” – section cross brace.

18) As a result of the incident, Milne received severe injuries to his neck that caused him to fall onto the walkway, unable to move. Hunt found Milne laying on the walkway approximately three hours after the incident. Milne was subsequently transported to Griffith Hospital and then airlifted to Prince of Wales Hospital, Sydney, where, about three weeks later, he died from his injuries.

19) Prior to the accident the Defendant had no written procedures in place for the inspection and maintenance of the rake machine.

20) Prior to the accident the Defendant did not provide to its employees any specific information, training or instruction for the inspection and maintenance of the rake machine.

21) In particular, prior to the accident, the Defendant did not have in place an isolation procedure that could be utilised when carrying out maintenance on the raking machine.

22. The Defendant did not undertake a risk assessment of the rake machine, and apart from maintenance on the machine, the Defendant did not undertake any general safety inspections. At the time of the accident, the rake machine was unguarded.

23) On 6 October 2001, Inspector Stuart Larkin conducted a factual investigation. The factual inspection report is annexed hereto as Attachment “A”.

24) Attached hereto as Attachment “B” are 17 numbered photographs taken by Inspector Stuart Larkin on 6 October 2001.

25) Attached hereto as Attachment “C” are 5 numbered photographs taken by Inspector Stuart Larkin on 7 November 2001.

26) On 6 October 2001, improvement notices numbered 239871 and 239872 were issued to “Twynam Pastoral Company” which required that:

(a) All dangerous parts of the rake machine, in particular nip points created by the rake machine bars and structural components of the plant, to be securely fenced, or by other means, in order to ensure the safety of persons working around the rake machine;

(b) A lockout/tagging procedure for the rake machine to be developed and documented, or other means, to ensure the safety of persons conducting maintenance on the rake machine.

27) Subsequent to the accident, the following changes in relation to the rake machine occurred:

(a) secure fencing and guarding was installed around the rake machine;

(b) the walkway was repositioned outside the fencing/ guarding;

(c) the drippers were repositioned outside of the fencing;

(d) a sign was erected on the rake machine stating “No Entry – Authorised Personnel Only”;

(e) written lockout/ tagging procedures were developed for the rake machine and employees trained in the procedure;

(f) a safety alert was issued to other properties under the control of the Defendant to inspect their rake machines and to implement similar changes.

(28) As a result of the said failures, Raymond Milne was fatally injured.

5 Section 8(1) of the OHS Act 2000 is similar in terms to s15(1) of the OHS Act 1983. Section 8(1) of the OHS Act 2000 states:

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.

6 Mr D.B. O'Neil of counsel appeared for the prosecutor. Mr I.M. Neil of counsel appeared for the defendant. The prosecutor tendered a number of photographs of the site and three Victim Impact Statements which I will address later in this judgment.

7 The defendant relied upon the affidavit of Ms Christine Campbell, Executive Chairman annexed with two volumes of material related to systems of work and the Occupational Health and Safety Policies and Procedures of the company; and affidavits of Mr Christopher Barry, Farm Manager and Mr Graham Hunt, Equipment Overseer. Both Ms Campbell and Mr Barry were called for cross examination.

8 The defendant entered a plea of guilty to the charge.

9 In consideration of penalty, the Commission in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch’ng) (1999) 90 IR 464 (at 474):

. . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . .

10 As to the court's assessment of the objective seriousness of the offence, the prosecution submitted there was a total absence of any system of work; the machine was left unguarded with dangerous moving parts; no risk assessment of the task had been conducted, and no specific information or training had been given to the employee.

11 The defendant submitted it pleaded guilty to the offence as pleaded including the particulars relied upon. However, the defendant submits the court would weigh into its consideration of the objective seriousness of the offence the following facts:

(1) It was not clear how the deceased employee was caught in the machinery and how he received a nip point fatal injury.

(2) Mr Watson, the OHS consultant, previously hired by the company did not recognise the risk the particular plant provided. Reliance is placed on Ms Campbell's affidavit where she revealed:

The Trash Machine

Prior to September 2001, the Group had 16 trashrakes that had been designed, built and commissioned by different manufacturers and at various times. The machines were situated on the Group's properties as follows:

(a) Gundaline 2

(one was in the process of being installed)

(b) Iffley 1

(c) Garalema 1

(d) Buttabone 2

(e) Collymongle 5

(f) Merrowie 1

(g) Elengerah 4

At the time of the accident only two of the 16 machines were discovered to have had a problem with guarding. These were the machines at Merrowie and Gundaline Farm.

(3) The defendant conceded, given the state of the machine, there was an element of foreseeability to the offence. However, it submitted, the Court would take into account the company had had a risk assessment conducted on the Gundaline farm by occupational health and safety consultants on 2 November 1999.

(4) Mr Watson, the independent assessor, had identified other machines, specifically, as in need of guarding. He did not specifically identify the existing two trash machines as in need of guarding.

(5) The defendant had given a general warning to its employees that when performing maintenance work all machines must be turned off. It has been agreed that for Mr Milne to have suffered his fatal injury, he must have been working on the trash machine while it was in motion.

12 I have considered the submissions of the defendant as to the objective seriousness of the offence. I have examined the independent assessor's report of 2 November 1999, compiled before the incident. Mr Watson, the independent assessor, made the general comment:

Machine Guarding:

Legislation places a strict obligation on an employer with regards to the guarding of dangerous parts of machinery.

All the pump sites viewed (and as advised, the ones I did not view) without exception would not meet this most strict obligation to guard exposed dangerous parts of machinery. I have identified the areas of concern in the body of the report.

I believe this to be a fair and direct warning to the company of its potential risk in not guarding the trash machine. The defendant company acknowledged this with its concession there is a foreseeable element to this offence.

13 It is also relevant, in a consideration as to the gravity of this offence, Mr Milne suffered fatal injuries (Inspector Louise May v McDonalds Australia Limited [2002] NSWIRComm 179 [at 45]). While the gravity of injury arising from the breach does not, of itself, dictate the level of penalty, the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President said in Ferguson v Nelmac (1999) 92 IR 188 (at 204):

. . where a fatal injury has occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious.

Wright J, President endorsed the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5):

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant. . . .

14 As to the effect of the fatality, in my assessment of the objective seriousness of the offence, I take it into account as reflective of an offence the nature and quality of which was most serious. Because of the element of foreseeability in requiring an employee to work on a machine whose dangerous parts were unguarded, the potential risk became a reality. The realisation of the risk is, I find, indicative of the gravity of the offence.

15 In circumstances where there was no system of work, nor proper instructions for work on an unguarded machine, and where the defendant had been given a safety warning as to the unsafe nature of a machine of this type, I find this a most serious offence.

16 In consideration of penalty, a number of subjective features to the offence have been placed before the Commission in Court Session. In Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464, the Full Bench said (at 474):

It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval, the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said:

. . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

17 I accept the defendant now has a genuine commitment to occupational health and safety and that this commitment is reflected in its occupational health and safety policy and procedures. The defendant submitted the company had a high standard of Occupational Health and Safety in place at the time of the incident. I do not accept this.

18 Much documentation was tendered by the company for examination to assist the Court to assess the company’s attitude and commitment to occupational health and safety both before and after the incident.

19 From 1996 onwards, I accept there was an effort from central management conveyed to farm managers within the group’s significant number of farming interests to draw attention to safe working procedures and to encourage its farm managers to adopt a risk management approach to farm health and safety. This awareness was given a significant boost with the appointment of Mr Geoff Lindon as Operations Manager. However, much of the earlier instruction was in its nature, general, for example: the simple warning "do not work on a machine in motion" was the instruction.

20 I have sighted the following documents: Managing Farm Safety Bulletins with notifications to all property managers; Compliance Manuals; Safety and Environment Manuals (updated); Operations Manuals; Policies and Procedures Induction Manuals - all of which were developed from 1996 onward.

21 The company, I accept, has now developed a sophisticated Safety Policy and Procedures system, including Risk Management Assessments on all machinery and the design of work systems for all tasks. I am further persuaded, by evidence, through the work of Safety Committees, Tool Box Meetings, and the Induction Procedures for Employees, that this is a policy that actively includes participation from each employee "on the job".

22 I accept the expressed level of contrition by the company which I find was also reflected in the concern it showed and the assistance it provided to the family of the deceased. This concern was expressed by Ms Campbell as follows:

73 At the time of Mr Milne's accident on 26 September 2001 I was overseas. I was informed of the accident on 27 September 2001 and instructed the Group's Human Resources Manager, Janna Christmas to visit the Prince of Wales hospital in Sydney that day to see Mr Milne. I also instructed Ms Christmas to take whatever steps were necessary to assist Mr Milne and his family. I returned to Australia on Sunday, 14 October 2001.

74 In response to the accident, my initial primary concern was for Mr Milne and his family.

75 I subsequently approved arrangements at the Company's expense for Mr Milne's sons, Rodney and Luke, to be flown down to Sydney so that they could be with their father and the Company reimbursed Mr Milne's sisters, Cathy and Ros, for the costs of collecting Mr Milne's belongings from Gundaline Farm.

76 Janna Christmas returned to Prince of Wales Hospital on 5 October 2001 and met with Mr Milne's sisters. Janna Christmas and Chris Barry, the Manager of Gundaline Farm, were in constant contact with Mr Milne's family and were involved on a day to day basis in managing the wellbeing of Mr Milne and his family.

77 On 17 October 2001 Janna Christmas and Chris Barry returned to Prince of Wales Hospital and again met with Mr Milne's sisters. They were informed that Mr Milne's condition was grave. Mr Milne passed away on 18 October 2001.

78 Janna Christmas liaised with the family and assured the family that the expenses associated with the funeral would be underwritten by the Company. I, Janna Christmas and several other staff from the southern region attended Mr Milne's funeral which was held on 24 October 2001 at Hillston.

23 The defendant revealed the incident had a profound impact on the company. Present in court were three members of senior management to express to the Court the company's contrition.

24 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held:

I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that 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. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows:

The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

25 These principles were recently cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74] where it was said:

the . . . 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 39 at 40-43) we would expect such cases to be very rare . . .

26 There must however be a significant element of general deterrence to be addressed in this consideration as to penalty where the Court is examining safety "down on the farm". The Farm provides a working environment where the use of heavy machinery is a daily requirement. The farm is sometimes a very small operation but each and every employee must be provided with the basic protections for safe working - protections such as the provision of guards over dangerous parts of all machinery; a risk assessment of each task; a system of work designed for each particular task and the appropriate information and training to employees for the performance of that task.

27 The obligation on the operators of large farming interests, as in the case of this defendant, is an obligation related to care of its employees under the OHS Act. This most serious breach of the OHS Act occurred in September 2001. The company conducts significant farming interests in New South Wales particularly in the cotton industry. The OHS legislation has been in place since 1983. It is indicative of the general state of safety awareness in the industry that employees are required to work on unguarded machines without any devised system of work for the task and where no specific information and instruction is given.

28 In consideration of penalty and the element of specific deterrence, I accept the defendant has now reviewed all its farming tasks. It has carried out risk assessments and revised all its operational procedures. As to specific deterrence, the defendant submits the Court would be satisfied “it could do no more”. The words of Maidment J in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, CT1062 of 1993, 26 November 1993) are apposite in the circumstances (at 7):

Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments irrespective of their own laxities.

29 I do not accept I should discount all elements of specific deterrence in my consideration as to Penalty but I do accept there has been considerable endeavours, both practical in nature and backed by the financial commitment of the company, to ensure future safe working in the conduct of the defendant's farming business interests.

30 The defendant has no prior convictions.

31 I am satisfied the defendant has entered an early plea to the offence. This is agreed to by the prosecutor. I am satisfied in the circumstances, the utilitarian value of the plea should attract a discount of 25 per cent (R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104).

Victim Impact Statement

32 The prosecutor relies upon three victim impact statements. It tenders the statements pursuant to Division 2 Part 3 of the Crimes (Sentencing Procedure) Act 1999 (“the CSP Act”). Section 27(2)A of the CSP Act applies to offences under s8 of the OHS Act. Pursuant to s28(3) of the CSP Act, the court must receive the impact statement given by a family victim and acknowledge its receipt. Relevantly, s28(4)(b) of the CSP Act states the Industrial Relations Commission:

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

33 In Previtera v R (1997) 94 A Crim R 76 (at 86-87), Hunt CJ considered the effect of similar legislation, saying:

In cases where the victim is still alive – that is, the victim directly injured by the offender’s criminal act – victim impact statements will no doubt serve the useful purpose in the Criminal Courts of establishing the consequences of the crime upon that victim. A problem arises, however, in those cases – such as the present – where the crime involves the death of the victim. The consequences of the crime upon the victim (death) has already been proved (or admitted) by the time the offender comes to be sentenced. It may be that, in the case of a slow, lingering and painful death, information from the family would be relevant, but that would be a very rare case.

. . .

The law already recognises, without specific evidence, the value which the community places upon human life ... It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other.

34 While the court is obliged to acknowledge victim impact statements, in R v Slack [2004] NSWCCA 128 (published 7 May 2004), the Court of Criminal Appeal considered circumstances where it may be appropriate and/or inappropriate to consider such statements in the court's determination of penalty saying at [60-62]:

Section 28(4) (of the Crimes (Sentencing Procedure) Act 1999) provides that the court 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 must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. (A "family victim" is defined as meaning a member of the primary victim's immediate family where the primary victim has died as a direct result of the offence.) The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence.

Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime's effect.

The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim's own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

and further at [64]:

Although the point is not one of special significance, I would mention that it is impermissible for a sentencing judge to treat the distress of the victim in having to give evidence as a matter of aggravation: Siganto (1998) 194 CLR 656 at [27]. I do not construe the provisions of the Crimes (Sentencing Procedure) Act 1999 as modifying that approach. . . .

35 The significance of the sworn victim impact statements tendered in this case - which were from the mother of the deceased's son and two of the deceased's sisters - is their description of the impact of the breach. The harm, including the real distress and sorrow, that flows when an employer fails to take adequate steps to comply with its duties is well revealed in their statements. Such descriptions reinforce the raison d’etre underlying the duties imposed upon an employer under the OHS Act.

36 The defendant has not argued as to its financial capacity to meet a penalty.

37 The maximum penalty prescribed by the Legislature for an offence under s8(1) of the Act for a corporation at the time of the incident is $550,000. I accept the company co-operated with the WorkCover Authority in its investigation of the breach as charged under s8(1) of the OHS Act 2000.

38 I take into account the gravity of the offence and the above relevant subjective features including the discount allowed for the utilitarian value of the plea.

39 I find the defendant guilty.

40 The defendant is fined in the sum of $275,000.00. I allow a moiety to the prosecutor.

41 The defendant is to pay the prosecutor’s costs as agreed. Leave to apply in relation to costs if costs are not agreed.

LAST UPDATED: 28/06/2004