Rodney Morrison v Waratah Engineering Pty Limited [2004] NSWIRComm 38 (19 March 2004)

Last Updated: 22 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Rodney Morrison v Waratah Engineering Pty Limited [2004] NSWIRComm 38

FILE NUMBER(S): IRC 4396, 4401 and 4402

HEARING DATE(S): 05/11/2002, 06/11/2002, 09/05/2003, 13/06/2003

DECISION DATE: 19/03/2004

PARTIES:

PROSECUTOR:

Rodney Morrison

DEFENDANT:

Waratah Engineering Pty Limited

(ACN 001 891 729)

JUDGMENT OF: Schmidt J

LEGAL REPRESENTATIVES

PROSECUTOR:

Ms AJ Katzmann SC with Mr R Reitano of counsel

SOLICITORS:

PricewaterhouseCoopers Legal

DEFENDANT:

Mr RJ Buchanan QC with Ms PE McDonald of counsel

SOLICITORS:

Curwood & Partners

CASES CITED: Cameron v The Queen (2002) 209 CLR 339

Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181

R v Sharma (2002) 54 NSWLR 300

R v Thomson, R v Houlton (2000) 49 NSWLR 383

Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78

Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298

Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416

Rodney Morrison v Tahmoor Coal Pty Ltd (2002) 120 IR 153

WorkCover Authority of New South Wales (Inspector Dubois) v Integral Energy of Australia (2002) 113 IR 315

WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd (No 2) (2001) 110 IR 160

LEGISLATION CITED: Coal Mines Regulation Act 1982

Occupational Health and Safety Act 1983

JUDGMENT:

- 31 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Schmidt J

DATE: 19 March 2004

MATTER NUMBER 4396 OF 2001

RODNEY MORRISON v WARATAH ENGINEERING PTY LIMITED

Prosecution under s16(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER 4401 OF 2001

RODNEY MORRISON v WARATAH ENGINEERING PTY LIMITED

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

MATTER NUMBER 4402 OF 2001

RODNEY MORRISON v WARATAH ENGINEERING PTY LIMITED

Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

1 These prosecutions were brought under ss15 and 16 of the Occupational Health and Safety Act 1983 ('the Act'). The defendant pleaded guilty to amended allegations, tendered by the prosecutor on the hearing of the plea. Another prosecution under s15 of the Act was thereupon dismissed, the prosecutor adducing no evidence in respect of the charge and by consent no order as to costs being sought.

2 The breaches and particulars alleged were respectively:

Matter number IRC 4401 of 2001

FAIL TO

Ensure the health, safety and welfare at work of all its employees, in particular Christopher Allen, contrary to section 15(1) of the Occupational Health and Safety Act 1983.

The particulars of the charge are:

1. At all material times Christopher Allen was an employee of the defendant.

2. At all material times Christopher Allen was undertaking in the course of his employment the maintenance and installation of a conveyor boom onto a Joy 12CM12 (No.CM04) continuous mining machine at an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coalmine was and is known as Cooranbong Colliery ("Cooranbong Colliery") and operated by Powercoal Pty Limited.

3. At all relevant times the defendant's employee and service technician Christopher Allen was at the Cooranbong Colliery working out the maintenance and installation of the said conveyor boom.

4. On 1 July 1999 at or about 11:45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel.

5. Prior to 11.45pm on 1 July 1999 Christopher Elliot was working with Christopher Allen to install a conveyor boom onto a Joy 12CM12 (No CM04) Continuous Mining Machine ("the Continuous Miner").

6. Prior to 11.45pm on 1 July 1999 Christopher Allen was one of four persons working to install a conveyor boom onto the Continuous Miner.

7. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous Miner was lowered when the Continuous Miner was turned off.

8. Whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position.

9. Whilst performing the installation the left boom lift cylinder ram was found to be too tight to extend by hand to align with the top clevis and it was decided to drive the ram out by using the Continuous Miner's hydraulics by turning on its power by means of a radio control transmitter.

10. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left side of the stabiliser jack foot and held the said foot in position with his own foot.

11. Prior to powering up the Continuous Miner Christopher Elliott remained into the space between the underside of the conveyor boom and the stabiliser jack which was into the lower position.

12. Christopher Elliott then requested another employee, Douglas Jones to start the Continuous Miner(sic) power.

13. Douglas Jones started the Continuous Miner's power with a remote radio controller the effect of which was to cause the stabiliser jack to be raised causing Christopher Elliott's legs to be trapped between the stabiliser jack and the underside of the Continuous Miner.

14. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein causing his death.

15. The defendant failed to provide such information, instruction, and training for the maintenance and installation of conveyor booms onto the Continuous Miner that ensured the health, safety and welfare at work of all of its employees and in particular Christopher Allen.

Matter Number IRC 4396 of 2001

FAIL TO

Ensure that persons not in its employment, in particular Christopher Elliott and Colin Bradley, who were present at its place of work were not exposed to risks to their health or safety arising from its undertaking contrary to Section 16(1) of the Occupational Health and Safety Act 1982 (sic).

The particulars of the charge are:

1. At all material times Christopher Elliott and Colin Bradley were employees of Powercoal Pty Limited.

2. At all material times the defendant was undertaking the maintenance and installation of a conveyor boom onto a Joy 12CM12 (No CM04) continuous mining machine at an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle on the western side of Lake Macquarie which coal mine was and is known as Cooranbong Colliery ("Cooranbong Colliery") and operated by Powercoal Pty Limited.

3. At all relevant times the defendant's employee and service technician Christopher Allen was at the Cooranbong Colliery working upon the maintenance and installation of the said conveyor boom.

4. On 1 July 1999 at or about 11:45pm Christopher Elliott was one of four persons working at Cooranbong Colliery approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine at a section of the mine known as Stowage B Panel.

5. Prior to 11.45pm on 1 July 1999 Christopher Elliot was working with Christopher Allen to install a conveyor boom onto a Joy 12 CM 12 (No CM04) Continuous Mining Machine ("the Continuous Miner").

6. Prior to 11.45pm on 1 July 1999 Christopher Allen was one of four persons working to install a conveyor boom onto the Continuous Miner.

7. Whilst performing the installation the power to the Continuous Miner was turned on and the stabiliser jack to the Continuous miner was lowered when the continuous miner was turned off.

8. Whilst performing the installation Christopher Elliott climbed into a space between the underside of the conveyor boom and the stabilizer jack which was in the lowered position.

9. Whilst performing the installation the left hand boom lift cylinder ram was found to be too tight to extend by hand to align with the top clevis and it was decided to drive the ram out by using the Continuous Miners (sic) hydraulics by turning on its power by means of a radio control transmitter.

10. Prior to powering up the Continuous Miner Colin Bradley positioned himself under the rear side of the Continuous Miner between the rear bumper and the floor adjacent to the left hand side of the stabilizer jack foot and held the said foot in position with his own foot.

11. Prior to powering up the Continuous Miner Christopher Elliott remained in the space between the underside of the conveyor boom and the stabiliser jack which was in the lower position.

12. Christopher Elliott then requested another employee, Douglas Jones to start the Continuous Miner (sic) power.

13. Douglas Jones started the Continuous Miners (sic) power with a remote radio controller the effect of which was to cause the stabiliser jack to be raised causing Christopher Elliott's legs to be trapped between the stabiliser jack and the underside of the Continuous Miner.

14. At the time that Christopher Elliott's legs became trapped they were crushed and the metal pierced his left thigh cutting through the femoral artery and vein causing his death.

15. The defendant failed to provide such information and instruction as may be necessary to persons carrying out maintenance and installation work on the Continuous Miner that ensured that persons not in its employment who were present at its place of work were not exposed to risk to their health or safety arising from its undertaking.

3 It is pertinent to note, at this point, that the parties each made reference to the decision in Rodney Morrison v Powercoal Pty Limited [2002] NSWIRComm 298 in the cases they advanced. That prosecution had arisen out of the same events as here arose for consideration. The decision was under appeal. The prosecution submitted that this case must be determined on the facts presented in these proceedings. Both parties accepted that in sentencing, the principle of parity arose for consideration. They disagreed, however, as to whether the application of that principle required consideration of this plea not to be finalised, prior to determination of the appeal.

4 Having considered the parties' submissions, the conclusion which I reached was that the outcome of the appeal should be awaited, before decision in this matter was given. In coming to that conclusion I was influenced by the evidence which emerged in this case, which demonstrated that the facts agreed by the prosecutor in Powercoal, departed in significant and relevant ways from the facts agreed in this case. I will touch upon this further below.

5 The appeal judgment was given by the Full Court on 28 November in Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416. On 8 December, the prosecutor filed a further written submission, relying on earlier submissions made as to parity in sentencing and reiterating that there should be no disparity, which could give rise to any 'justifiable sense of grievance'. Reliance was placed upon the remarks of the Full Court at [31] to [38].

6 The defendant's final submission was filed on 18 December. It was submitted that notwithstanding the appeal judgment in Powercoal, the evidence had shown that the responsibility of this defendant for any risk was much less than Powercoal's and that the defendant's culpability was at the lower end of the scale.

The Evidence

7 An agreed statement of facts and various documents were tendered and the defendant called evidence from Mr Mark Jones, Service/Hire Manager of Waratah Engineering Pty Limited. Evidence was also called from Mr Ivan Random, the defendant's general manager, which was withdrawn following questions in cross examination, which raised concerns as to the prospect of self incrimination. This situation arose because the period provided in s49 of the Act for prosecutions to be commenced, had not expired at the time of the hearing.

8 The agreed Statement of Facts tendered provided:

1. These proceedings were instituted with the written consent of the Director-General of the Department of Mineral Resources, who is a prescribed officer within the meaning of s 48 of the Occupational Health and Safety Act 1983.

2. Waratah Engineering Pty Limited ("the Defendant") is a body corporate.

3. Christopher Allen was an employee of the Defendant.

4. Christopher Elliott, Colin Bradley and Douglas Jones were employees of Powercoal Pty Limited (“Powercoal”).

5. Powercoal operated an underground coal mine located near Dora Creek, 35 kilometres south west of Newcastle, on the western side of Lake Macquarie, which coal mine was and is known as Cooranbong Colliery (“Cooranbong Colliery” or the “mine”).

6. At the mine mining was conducted by means of continuous miners. At all material times Powercoal had four continuous miners operating at the mine. The continuous miners were manufactured by Joy Manufacturing Pty Ltd ("Joy").

7. The continuous miners included machine 12 CM12 JM 4774. That machine was owned and operated by Powercoal.

8. Another continuous miner in operation at Cooranbong Colliery was a Joy 12 CM12 (No CM04) JM 4952 which was owned by Waratah Hire Pty Limited and hired to Powercoal pursuant to a hire contract for the purposes of producing coal. Waratah Hire engaged the Defendant to service it. Waratah Hire was a wholly owned subsidiary of the Defendant. It had one employee who was the manager of the company and simultaneously held the position of Operations Manager of the Defendant.

9. The Defendant employed service technicians who were required to service mining and other equipment (including the continuous miner) for various mining companies and for Waratah Hire. The Defendant owned and operated a workshop for that purpose and also sent its technicians to mine sites to work on mining equipment.

10. Christopher Allen was employed as a service technician.

11. On 5 March 1999 Christopher Allen was inducted to work at the mine at the Cooranbong Colliery and to perform work in accordance with instructions issued by responsible mine officials. Christopher Allen held no appointments from the mine manager authorizing him to operate any underground machinery.

12. On 30 June 1999 the continuous miner sustained damage to the conveyer boom main hinge points.

13. John Gluszek, another of the Defendant’s employees, and Christopher Allen went to Cooranbong Colliery on 30 June 1999 and inspected the continuous miner. It was observed that the pivot tubes had broken out, that there were some fractured brushes and some other damage to the continuous miner.

14. Christopher Allen disconnected the conveyer boom from the continuous miner and it was taken to the Defendant’s workshop for repairs.

15. On 1 July 1999 Christopher Allen was asked to go to Cooranbong Colliery to assist in the installation of the conveyer boom on the continuous miner. He was issued with a Job Instruction for Job 12732, ITP, parts and a material data sheet.

16. The job instruction included a direction to "isolate machine as per colliery instructions" and extracts from the maintenance manual for the machine CM04, JM4952.

17. The repaired conveyor belt was transported to the Cooranbong Colliery. The installation of the conveyer boom onto the continuous miner had commenced during the afternoon shift on 1 July 1999 and was being conducted approximately 125 metres below the surface and about 7.5 kilometres from the entrance to the mine known as storage B Panel. Christopher Allen assisted the afternoon shift in the installation.

18. Christopher Allen left the job and came out of the mine at approximately 9.30pm as there was no Deputy present. He was asked by Allan Tandy, from Powercoal to stay while the job was completed and he left the pit top at 10.30pm with the night shift to go underground again for a second shift for that purpose.

19. The night shift crew with Mr. Allen in attendance was required to complete the installation and specifically was required to connect the boom lift cylinders to the boom and reconnect the conveyer.

20. The fitter in charge was Christopher Elliott who was assisted by Colin Bradley, another fitter, and Doug Jones, an operator. All three held numerous appointments including an appointment to operate a Joy CM12CM on face operations during production.

21. Messrs Elliott and Bradley positioned the right hand boom lift cylinder and attached it to the bottom mounting point, the ram of the cylinder was extended by hand and attached to the underside of the boom with the clevis pin.

22. Messrs Elliott and Bradley attached the left hand lift cylinder to the bottom mounting point and attempted to extend the ram by hand. They were not successful.

23. Because they were unable to extend the left hand boom lift cylinder by hand Mr. Elliott decided to use the machine hydraulics. Mr. Jones was summoned from the crib room to operate the miner. Mr. Elliott instructed Mr. Jones to lower the stabiliser jack to provide more working room. Mr. Jones turned the power on and by using the remote control box lowered the stabiliser jack and turned the power off again.

24. Mr. Elliott climbed into a space between the underside of the conveyor boom and the stabiliser jack which was in the lowered position. Mr. Bradley positioned himself under the rear side of the continuous miner between the rear bumper and the floor adjacent to the left hand side of the stabiliser jack foot and held the cylinder foot in position with his foot.

25. Mr. Allen had been at the toilet during the connection of right hand boom cylinder. He returned and was present at the attempt to extend the left hand boom lift cylinder but gave no instruction or advice about the procedure being used, and took no personal part in it.

26. Douglas Jones started the power on the continuous miner with a remote radio controller the effect of which was to cause the stabiliser jack to be raised partially from its lowered position. The remote radio controller was in "radio" mode. The stabiliser jack retracted (i.e. rose) automatically when the machine was used in radio mode. This caused both of Christopher Elliott’s legs to be trapped between the stabiliser jack and the underside of the continuous miner.

27. The procedure the Powercoal employees used to raise the boom lift cylinders using the machine’s hydraulics accorded with the written procedures in the manual provided by Powercoal and published by the manufacturer, Joy, but differed from the procedures set out in the Waratah Hire manual. Those differences are set out below.

28. The automatic stabiliser jack retraction feature had been added to the Joy continuous miners in an effort to improve the safety of the machines and avoid the possibility of unpredictable and dangerous slewing of the conveyor boom on start-up with the stabiliser jack down. However, a Hazard and Operability Study of the 12CM12 continuous miners conducted in April 1998, in which both Powercoal and the Defendant participated, had recommended that this feature be eliminated.

29. Douglas Jones had been operating this particular continuous miner for 3 months and knew that the stabiliser jack had the capacity to retract automatically but had never changed the boom or lifted the boom jacks on this model of continuous miner. On three or four occasions he had changed the booms on certain other continuous miners but they did not have a stabiliser jack that retracted automatically. He was unaware of the isolation power rules. At all times he simply followed the fitter’s instructions.

30. Colin Bradley was able to remove his right leg from its position between the stabiliser jack and the main frame of the continuous miner before the stabiliser jack first started to retract and was therefore able to avoid injury.

31. The continuous miner was immediately shut down using the remote control. Christopher Elliot’s legs remained trapped. Mr. Jones restarted the miner with the intention of releasing Mr. Elliott’s legs by use of the remote control whilst holding the stabiliser jack toggle in the down position. This did not override the automatic retraction of the stabiliser jack, which then retracted to the full up position. The effect of this was to further crush Christopher Elliot’s legs.

32. Christopher Elliott’s legs were crushed and the metal pierced his left thigh cutting through the femoral artery and vein ultimately causing his death.

33. Immediately after the second retraction the stabiliser jack was then lowered to the ground using the stabiliser jack toggle. This was possible as the machine had not been turned off as it had been on the earlier occasion.

34. The continuous miner operated in accordance with the machine specific software details as set out in the MCS Radio Specification Manual for the Waratah Hire Manual for CM12 JM4952. As the remote control, rather than manual mode, was used, the stabiliser jack of the continuous miner automatically retracted upon the hydraulic pump on the continuous miner being started. If the remote control had been in manual mode the stabiliser jack would not have automatically retracted. The software details were not included in the material supplied to Mr. Allen with the Job Instruction for Job 12732 and neither he nor any of the Powercoal employees was advised that if the remote had been in manual mode the stabiliser jack would not have automatically retracted.

35. It would have been possible after the initial retraction for Mr. Jones to immediately lower the stabiliser jack utilizing the stabiliser jack toggle had the machine not been turned off. As the machine was turned off the effect of powering up for a second time was to cause a further automatic retraction (this time to the full up position) in accordance with the software logic incorporated into the machine by the manufacturer.

36. The Defendant had access to the Waratah Hire Technical Manual for 12CM12 -12BVW, CM04 JM4952 written by Joy ("Waratah Hire Manual”). Extracts from this manual were given to Christopher Allen as part of his job instructions.

37. The Waratah Hire Manual recognised that the continuous miners had two modes of operation, radio and manual, and that radio mode was primarily used for production and manual mode was intended primarily for maintenance purposes.

38. Waratah Hire Manual contained the following instruction: “Check to be certain that everyone is well clear of the machine before moving it or adjusting the position of any hydraulic component.” This section was not included in the material supplied to Mr Allen with Job Instruction for Job 12732.

39. The Waratah Hire Manual in the section dealing with replacement of the main conveyor provided that in replacing the conveyor the following steps should be followed:

· Isolate the miner electrically as per the Mine Managers Rules

· Extend conveyor lift jacks and install pins

· Reconnect hydraulic hose to the conveyor swing cylinder.

This section was included in the material supplied to Mr. Allen with Job Instruction for Job 12732.

40. The instructions in the Waratah Hire Manual did not require the hydraulic hoses to be reconnected prior to the cylinder being reconnected. The manual contained no instructions that conveyor or lift jacks are to be extended using machine hydraulics.

41. The manual used by Powercoal for the operation of the 12CM12 CM 04 was a different manual ("Powercoal Manual") which had been prepared for a different continuous miner that is machine JM4774.

42. The Powercoal manual differed from the Waratah Hire Manual in that it contained a recommendation from the manufacturer against manually operating the hydraulic functions and also suggested that “the radio remote facility allows the machine to be operated from the most advantageous position.”

43. Powercoal had determined that radio mode was to be used for maintenance purposes and issued an instruction to that effect.

44. The replacement procedure for the conveyor set out in the Powercoal manual also differed from the procedure in the Waratah Hire manual in that it provided for the following sequence:

· be certain that electrical power has been disconnected

· reconnect the hydraulic hose to the cylinder

· reconnect the electrical power to the machine and carefully extend the cylinder hydraulically until the cylinder rod eye aligns with the pin bore in the mounting racket on the conveyor

· disconnect electrical power from the machine

45. These procedures necessarily required the hydraulic hoses to be reconnected to the boom lift cylinder before the cylinder itself is reconnected.

46. These procedures were duplicated in the Powercoal Job card JM019 that applied to the work being conducted by the employees of the mine, namely Messrs Elliott, Bradley and Jones.

47. The job instructions issued to Christopher Allen specifically directed him to "isolate the machine as per colliery instructions". The directions in the extracts from the Waratah Hire Manual provided to him also directed that the miner be isolated electrically as per the Mine Manager’s rules. The mine manager rules on isolation were contained in Powercoal Isolation Procedures (GWP005) and Continuous miner Operating Procedures (SWP002). These procedures were not applied on the night of 1 July 1999. The Powercoal employees believed they needed the power of the miner to raise the hydraulic cylinder. They were not given a portable hydraulic jack although there was one available at the mine.

48. None of the Powercoal employees was given specific instructions by their employer or by Waratah Engineering about the method to be adopted to attach the boom lift jacks to the new boom or the safe way to elevate the boom lift jacks.

49. The safe working procedure ultimately adopted after the accident for completion of the task of connecting the left hand boom lift cylinder was based on the extracts from the Waratah Hire Manual provided to Mr. Allen with the addition of the instruction that the conveyor lift jack be extended “using auxiliary hydraulic power pack”. This instruction was inconsistent with the instructions in the Powercoal manual and Powercoal job card JM019, which envisaged using the machine’s hydraulics, but not inconsistent with the procedure in the Waratah Hire manual which did not. On the other hand the Waratah Hire manual did not advert to the method to be applied to extend the boom lift cylinders in the event that the task could not be carried out manually using an auxiliary hydraulic power pack.

50. None of the mine employees was (sic) conscious of or remembered the automatic retraction feature even though the mine itself had issued a written reminder to its fitters of stabiliser jack automatic retraction upon start up on 18 November 1998 after there was a near miss in similar circumstances.

51. Christopher Allen was not informed or instructed about or trained in the automatic retraction of the stabiliser jack upon start-up in remote mode arising from software incorporated in the machine and did not bring this feature to the attention of the employees of Powercoal: Christopher Elliott, Colin Bradley and Doug Jones. The Defendant did not take any other steps to bring this feature to the attention of Powercoal employees.

52. Consequently, the Defendant did not provide such information or instruction as may have been necessary to ensure that Colin Bradley and Christopher Elliot, persons not in its employment who were present at its place of work were not exposed to risks to their health or safety arising from its undertaking.

53. It is agreed that the documents listed in attachment A may be tendered in the proceedings.

54. The Defendant has no prior convictions under the Occupational Health and Safety Act 1983.

9 Mr Jones' evidence went to the defendant's approach to its obligations under the Act in relation to health and safety matters, overall responsibility for which rested with the general manager. His evidence showed that the defendant had in place various safety programmes, both at its own worksites and for those of its employees who worked away from its premises, in places such as the mine at which this accident occurred. Employees also received various relevant training and safety committees were operating. The evidence showed that there was also a substantial reliance upon site specific induction courses provided by mine owners such as Powercoal, to the defendant's employees. In some cases such induction took no more than two hours. Mr Jones' evidence in cross examination was that since the accident, the defendant had not taken steps to review the induction so given to its employees, to satisfy itself that individual mine owners had provided all information, which an employee might require for safety while working at a particular mine. In cross examination, Mr Jones also gave evidence as to his own responsibilities in relation to safety matters and how the defendant approached its obligations under the Act. Mr Jones agreed that the defendant relied upon mine owners to provide safety for its employees, but his evidence was that Waratah also provided for their safety, in various ways.

10 Mr Jones accepted that Waratah had not made any enquiries as to the nature of the induction provided by particular mine owners to Waratah employees, nor had the defendant informed itself as to the details of such induction courses. Mr Jones also explained that while Waratah was informed of a fatality which had occurred at United Colliery in December 1997, as the result of the use of a radio controlled Joy 12 Continuous Miner, no steps were taken as a result by Waratah in relation to safety. Nor was any inspection conducted. He explained that at that time, no Waratah employees were working at the place where the fatality had occurred.

11 The defendant was developing an Occupational Health and Safety Manual and was involved in an audit scheme being conducted by the WorkCover Authority, designed to improve plant safety. In cross examination, Mr Jones explained that the defendant's manual had not been finalised, because it comprised a collection of systems which were each in place. The manual was designed simply to collect the systems in one place. Each system was itself under ongoing review.

12 Mr Jones also described the information provided by the defendant to employees sent to outside sites by way of a 'jobpack', containing various relevant information and instructions, prepared for each particular job. These documents also remained under constant review. He also gave evidence as to the addition of a 'Job Safety Map' to the jobpack, after the accident the subject of these proceedings. In cross examination, he explained that the contents of this pack also remained under constant review. Mr Jones explained that the employees were expected to read this material before attending each job. There was no system involving further oral instruction on what was in the jobpack. The defendant's service manager and the particular mining engineer, agreed on the scope of work which was dealt with in each jobpack. This discussion was where instructions and later debriefing for employees originated from.

13 The defendant's service personnel spent some 90% of their time away from the defendant's premises. Mr Jones' evidence was that the defendant's safety systems still applied to them and that they attended tool box meetings, which dealt with safety matters and which were conducted at the defendant's premises. There was also a formal 'near miss' report system in place where which employees recorded safety issues which had arisen on sites at which service personnel were working. There was however, no system in place requiring mine owners to advise Waratah of such circumstances having arisen, although the defendant's Service Manager and mining engineers were in constant discussion, as to what was happening at particular mines where the defendant's employees were working.

The parties' cases

14 Ms Katzmann SC, appearing for the prosecutor with Mr Reitano of counsel, submitted that the evidence demonstrated that the very risk with which these offences were concerned, was a risk which was actually known to the defendant, over 12 months beforehand. A hazard and operability study had then been conducted by employees of both Powercoal and Waratah. Attention was there drawn to the fact that the stab jack retracted on start up of the miner, a built in safety feature of the software. A review of this 'hazard' was called for, but the feature had not been removed.

15 It followed that Waratah had knowledge of the risk which had here resulted in the death of a Powercoal employee. The agreed facts demonstrated that only a minor modification to the defendant's instruction manual was introduced after the accident. It followed that all that was necessary to avoid the risk, was to instruct employees to use a hydraulic power pack, available at the mine.

16 Comparisons were drawn between the instructions given to Mr Allen for the work and the safe working procedures introduced after the accident. It was submitted to be surprising that there still appeared to be no warning given as to the automatic retraction feature of the stab jack.

17 In Powercoal, it had been concluded that a serious offence had occurred. There could be no doubt that the same conclusion had to be reached here, where the Court was concerned with offences both under ss15 and 16. It was accepted that the principle of totality applied, in the context of the defendant's demonstrated culpability for the two offences charged.

18 It was also accepted that relevant matters going to mitigation should be taken into account in determining sentence, but it was submitted that they were subordinate to the objective factors, which were argued to have established both that the offences were serious and that the risks were known and foreseeable.

19 It was also accepted that the defendant's pleas of guilty had to be taken into account, but it was argued that the timing of the pleas had to be considered. It was also relevant that apart from the plea, there was no evidence of any expression of remorse by the defendant and no evidence of steps taken after the accident, consistent with such remorse, as had been taken into account by the Court in other cases. Here, the plea was but a recognition of the inevitable and so it followed that less weight would be given to it.

20 It was also submitted that the defendant's role in the accident, by comparison with that of the co-offender, required consideration of the fact that in terms of penalty, the Act drew no distinction between the offences created by ss15 and 16. It was accepted that the defendant's role with respect to its employees was different to its role with respect to Powercoal employees. It was, nevertheless, submitted that despite this, and no matter where an accident occurred and no matter what level of responsibility the defendant had over the particular working conditions, the defendant was still obliged to ensure the safety of its own employees and that of others present.

21 It was submitted to be significant that the evidence showed that attention given by the defendant to safety of technicians sent to mine sites was very poor. Considerable reliance was placed upon site induction conducted by mine owners, without the defendant satisfying itself as to what the induction dealt with. There was no evidence of positive or proactive steps taken by the defendant to inform itself of the systems in place at mines for safety, despite the fact that its employees were routinely sent to work in mines, notorious for the safety risks there existing.

22 It followed that while this was a first offence, consideration needed to be given to the work sites to which employees were sent, over which the defendant had no control. The evidence showed that after the accident, in a year 83 injuries had occurred, at a company where 80 to 85 staff were employed, including administrative staff. This, it was submitted, put the reality of safety at the defendant's work places into context.

23 It was also submitted that account should be taken of the two levels of fine imposed by the Act. A lower fine fixed for a first offence meant that logically, the weight ordinarily given to first offences must thereby be diminished.

24 It was also submitted to be relevant that there was an ad hoc system for reporting safety issues at mines to the defendant. Reports from returning technicians were relied upon, with no system for reports from the mines themselves. The only remedial step taken after the accident was an addition to the jobpack. There was no evidence of any system change, or new training introduced. It followed that no real steps had been taken by the defendant to address the problems of the paper system in place at the time of this accident.

25 It was submitted that the countervailing factors to be taken into account when mitigation was considered, were the late pleas and the defendant's safety record after the accident.

26 As to totality, it was submitted that the total gravity of the circumstances had to be considered. The circumstances in the two cases were accepted to be the same, it was the class of person at risk, which differed.

27 As to whether the defendant, or Powercoal, had greater culpability for the events which had occurred, it was submitted that was a matter for the Court to determine, on the evidence brought in these proceedings. Account would be taken, however, of the differences which had emerged in mitigating factors, including in relation to the time of the plea and the lack of contrition. It followed that the discount in this case should be different to that in Powercoal.

28 The case advanced for the defendant by Mr Buchanan QC, appearing with Ms McDonald of counsel, was that regard had to be paid to the circumstances in which the accident occurred, which were submitted to be relevant to a proper assessment of the objective seriousness of the offences in question.

29 It was also submitted that the plea in these cases did not result from a recognition of the inevitable, but a responsible acceptance of the strict burdens imposed by ss15 and 16 of the Act. It would also be accepted that these pleas had in fact been entered at the earliest opportunity.

30 It was argued that the prosecutor's submission, that no matter what level of control the defendant had over a workplace, it was obliged to ensure the safety of its employees and others, failed to have regard to the explicit statutory regime which applied in coal mines, which imposed clearly expressed levels of responsibility and authority. Under that scheme, it was not possible for a contractor to dictate to a mine about matters covered by a mine manager's rules, especially with regard to mine employees and their safety. It was further argued that not only did the prosecutor's submissions ignore the requirements of s31 of the Act, they also ignored the reality of the necessary lines of responsibility and decision making processes at the mine.

31 It was also submitted that a comparison of the agreed facts in this case and that agreed in Powercoal, showed a number of differences relevant to an assessment of penalty. Nothing put in the prosecution submissions could detract from its active acceptance of the facts here agreed.

32 It was further submitted that the evidence showed that the risk to Mr Allen on the night in question was slight. He was not doing the job in question. It was being done by Powercoal employees. Powercoal owed duties under the Act to those employees and to others, such as Mr Allen. It was relevant that in Powercoal, the charge laid under s16 of the Act involving Mr Allen had not been pursued by the prosecutor. Powercoal pleaded guilty to diminished charges and then only in respect of its own employees. This undoubted fact was submitted to sit ill with the submissions made by the prosecutor in these proceedings against the defendant, in relation to the safety of Mr Allen.

33 The evidence here showed that two fitters employed by Powercoal were doing the work in question. They were put at risk. It had never been suggested that the operator of the machine had been put at risk. Mr Allen was not performing the work, although in other circumstances, it was accepted by the defendant that he might have been involved in what one or the other of the fitters was engaged upon, when the risk to safety arose. The defendant's plea to the s15 charge followed from an acceptance that there was an element of risk flowing from Mr Allen's lack of appreciation of the immediate dangers which flowed from the way in which the Powercoal employees undertook their work. It followed, however, that the overall objective seriousness of the s15 charge in this case was low.

34 By way of contrast, it was accepted that the s16 charge relating to Mr Bradley and Mr Elliott certainly involved risk. The question to be determined was, however, submitted those what responsibility the defendant bore for that risk. It was submitted that the evidence also showed that in fact, the defendant had very little responsibility, in the circumstances.

35 The common feature of the two charges was a lack of information. The detriment to safety was the same. It was put by the prosecution that all that was necessary to have averted the risk was to instruct the workers to use a hydraulic power pack. It was argued that the idea that the defendant could instruct or require the Powercoal employees to do so, was in the realm of fantasy. The defendant's culpability flowed from the fact that Mr Allen did not intervene to prevent the risk arising for the Powercoal employees. The evidence showed, however, that had he done so, a contradiction of an explicit mine instruction would have been involved. It followed that such an intervention could never, in reality, have been implemented by the defendant.

36 The contract between the defendant and Powercoal gave the hirer (another company related to the defendant), an interest in having the equipment in question repaired promptly. As a result, the machine had been inspected at the mine by the defendant's employees and the machine boom removed and repaired at the defendant's workshop. Mr Allen returned to the mine to assist with the re-installation of the boom. The defendant gave him a job instruction, parts, material and a data sheet. The particular re-installation work was done by the Powercoal fitters. While Mr Allen was involved in some other parts of the installation work, he was also, given instructions by the defendant about the physical tasks to be accomplished in reassembling the boom.

37 The instructions given by the defendant required, firstly, that they be provided to someone else, in Powercoal's employ. The first work instruction was that the machine be isolated. This question had become an important consideration in Powercoal. The technical manual for the Waratah Hire continuous miner being worked upon, was in identical terms. While these instructions did not deal with how the conveyor lift jacks were to be extended, or warn that they would retract automatically if the machine was switched on, as instructed, they were only to be extended after the machine had been isolated electrically.

38 The instructions issued by the defendant after Mr Elliott's death, were consistent with the defendant's instructions to Mr Allen, with the addition of the use of the words 'using hydraulic power pack'. It followed that after the accident there was a specific new instruction, it did not contradict anything in the defendant's actual instructions to Mr Allen, prior to the accident.

39 This was submitted to be important, when consideration was given to how the accident had arisen. Mr Allen had been underground during the afternoon shift, assisting with the installation of the conveyer belt. He came out of the mine at 9.30pm, because there was no deputy present. He was asked to stay while the job was completed and returned underground with the next shift.

40 Mr Elliot and Mr Bradley then successfully got one cylinder out, without difficulty. They could not get the other one out and Mr Elliott decided to use the machine hydraulics to do so. The operator, Mr Jones, was called and Mr Elliott instructed him to lower the stabiliser jack and then he and Mr Bradley put themselves inside the machine.

41 Mr Allen had been at the toilet while those instructions were given. It was accepted that upon his return, he did not attempt to intervene or give direction to the Powercoal employees, but it was submitted to have been significant that he was not doing the work in question. It was, nevertheless, accepted by the defendant, that Mr Allen was not armed with specific information as to the automatic retraction feature of the machine, which might have prompted him to intervene and issue a warning as to the danger of so lowering the stabilizer jack, when the machine was not isolated.

42 This acceptance, it was submitted, had to be considered in light of the fact that the evidence showed that Powercoal was not using the Waratah Hire instruction manual for the work being performed. Powercoal was following a different manual, with different instructions, applying to another continuous miner which it owned. The instructions given by Powercoal to its employees, in respect of the replacement procedure, were radically different to those of the defendant. The Powercoal instructions involved the use of the machine's electrical power and hydraulics to perform the task in question. Under the Waratah procedure, they were not to be used. The employees were following the instructions given to them by Powercoal, when the accident occurred. Those instructions involved the machine hydraulics and power being used, contrary to Powercoal's machine isolation procedures, which also applied to the work.

43 The defendant's instructions were significantly different and conformed with the Powercoal isolation procedures. This was accepted by the prosecutor in the agreed statement of facts, to be a relevant factor in assessing the nature and quality of the offences with which the defendant was charged. It was submitted that it plainly followed that a large measure of responsibility for the risk in question was wrongly being attributed to the defendant, for the accident which occurred, in which the death of a Powercoal employee resulted. The evidence demonstrated that had the defendant's instructions been followed, this accident could not have occurred.

44 It was also submitted to be relevant that the Powercoal manual contained a recommendation from the manufacturer, warning against manually operating the hydraulic functions. In the agreed facts in these proceedings, it was noted, however, that if the remote control used on this machine had been in manual mode, the stabiliser jack would not automatically have retracted. It was relevant, that the work was being done by Powercoal employees following a Powercoal manual. Radio mode was used by the employees because Powercoal had determined that this was the safest way to do the job, following the manufacturer's recommendations. Unfortunately, that manual was designed for a different machine to that being repaired. It followed that it was relevant that Powercoal was not using the defendant's procedures.

45 While it was accepted that, technically, the mine was the defendant's place of work, it could not be overlooked that the actual work which gave rise to the risk was not being performed by the defendant. Mr Allen was an onlooker. Account also had to be taken of the fact that the defendant did not have control over the workplace, or the Powercoal employees, at the time of the accident.

46 Powercoal did have in place standard isolation procedures applicable to the work, as the decision in Powercoal revealed. They were not followed. The evidence in this case showed that the standard isolation procedures in fact contradicted the Powercoal procedures for the performance of the work in question. The defendant's instructions also provided for isolation, in accordance with the manufacturer's instructions. In those circumstances, it was submitted that a question arose as to how much control did the defendant have over the work in question, through Mr Allen or otherwise? In this case, that question had to be considered in the context of the Coal Mines Regulation Act 1982, which imposed a very strict order of authority in a coal mine. Contractual arrangements between the defendant and Powercoal could not impact upon this statutory regime. In reality, the defendant was not in a position to control how the Powercoal employees did their work.

47 It was also relevant that the accident could have been avoided in other ways. Both the Waratah and Powercoal manuals required that no one be near the machine when it was repowered. Mr Allen held no relevant certificates, other than in relation to induction at the mine. Mr Elliott, Mr Bradley and Mr Jones each held multiple certificates, including an appointment to operate the machine. Mr Jones was the operator who started up the machine with Mr Elliott and Mr Bradley placed as they were. This was contrary to all the applicable instructions, including those given to Mr Allen, who it was accepted by the defendant had raised no voice against it either. The defendant acknowledged this difficulty, given its plea.

48 It was, nevertheless, relevant that Mr Jones was aware of the automatic retraction feature of the machine. It had taken effect every time he had started the machine, whenever he had operated it, unless the jack was already retracted. It was an inbuilt safety feature of the software. The evidence showed that this had also been drawn to the attention of Powercoal employees by Powercoal, in a memo of 18 November. It followed that the operator had committed three serious errors. The first was to turn on the machine using radio mode, when there were people inside the machine. There was a partial retraction of the jack as a result. Had Mr Jones then operated the device manually, there would have been no retraction. Had he immediately used the toggle to lower the stab jack, it would have lowered. Instead, he turned the machine off, rearming the automatic retraction feature. Turning it on again, then caused the jack to further retract.

49 This was, submitted to have involved a terrible series of events. It was argued that the most, however, which could be said as to the involvement of Mr Allen and through him, the defendant in these failures, was that Mr Allen did not intervene in some way, which he might have done, had he been armed with information about the automatic retraction feature of the machine. Account, nevertheless, had to be taken of the fact that had the defendant's procedures for the work been followed, this was information which Mr Allen would not have required. It was also information which the Powercoal employees already had, they each being certified to operate the machine, and having each been expressly made aware of the feature by Powercoal. The employees also had the relevant instructions in relation to isolation of the machine which would have avoided the accident, if complied with.

50 It was accepted that if Mr Allen had been given the necessary information, about the automatic retraction feature, he might have advised the two employees not to get into the machine, because of the obvious danger of doing so, while it was turned on. The question remained nevertheless, in those circumstances, what level of control the defendant had, in reality, for this catastrophic turn of events, a matter relevant to culpability.

51 The evidence showed a number of grave errors had resulted in the accident the subject of the prosecutions. None of them, however, could fairly be laid at the door of the defendant, who had, nevertheless, accepted that it could have done more. It was argued that it was not appropriate in those circumstances, to trivialise the steps taken by the defendant after the accident to address the problems revealed.

52 It was also submitted that the addition made to the defendant's jobpack, after the accident, was submitted to have been an effective and practical measure, designed to be of real assistance when a technician was at work at a mine. A simple checklist was provided, which would assist the technician to deal with problems which might be encountered. While basic, it was adaptable for different circumstances and did not suffer from being reduced to mindless detail. There was no evidence from which it could be concluded that any other form of instruction could have made the slightest difference in the circumstances of this accident.

53 Powercoal's written instructions in November 1998 about the retraction feature of the stabiliser jack and the training given to its employees, in operation of the machine, including the operator had not made any difference. Nor did the mine isolation procedures, nor the accumulated experience of all those involved in the work. The circumstances of the accident were not readily foreseeable by the defendant. It, however, accepted, with the benefit of hindsight, that more could have been done to prevent this risk arising. Nevertheless, objectively, it would be accepted that the defendant had contributed but little to the risk to which these workers were exposed.

54 It was also argued that the submissions in relation to the defendant's record were misplaced and that the principle of totality had to be applied. (See WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd (No 2) (2001) 110 IR 160 at 177.) So, too, did the principle of parity in sentencing. The plea would also be accepted as an early one, given the way in which the hearing had proceeded. (See Cameron v The Queen (2002) 209 CLR 339 and WorkCover Authority of New South Wales (Inspector Dubois) v Integral Energy of Australia (2002) 113 IR 315 at p325).

55 As to any delay while the appeal in Powercoal was determined, it was argued that sentencing was a matter of discretion. There is always a presumption that an appeal against the exercise of such a discretion should not succeed. The approach of the High Court was that sentencing appeals should be rare, because they involve an element of double jeopardy. A delay while the appeal decision was given must lead to the parties being given the opportunity to address on the appeal decision. The parity principle did not require any automatic adjustment in sentence, if there was appellate intervention in a different sentence imposed upon another offender in other proceedings.

Consideration

56 As I noted earlier, given the arguments advanced in relation to the application of the parity principle and the differences which emerged in the evidence led by agreement in this case and that agreed by the parties in Powercoal, I came to the conclusion that sentencing should await the appeal decision in Powercoal.

57 Questions of parity in sentencing are, however, a subsidiary consideration in sentencing. As the authorities have now long established, the proper starting point in determining sentence is the nature and quality of the offence in question. The principles discussed in R v Thomson, R v Houlton (2000) 49 NSWLR 383 must also be followed. (See R v Sharma (2002) 54 NSWLR 300 and Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 at p89).

58 The defendant here accepted its culpability for the two offences finally pressed. It, nevertheless, argued that they did not involve serious breaches of its obligations under the Act and that it had but little control over the circumstances which culminated in the risks to safety to which the four workers were exposed.

59 Sections 33 and 39 of the Act also arise for consideration. They provide that:

33. This Act to prevail

(1) Except as provided by subsection (2), where any provision of the associated occupational health and safety legislation is inconsistent with a provision of this Act or the regulations, the provision of this Act or the regulations shall prevail.

(2) A person is not guilty of an offence under Part 3 in respect of any act or omission which is expressly required or permitted to be done or omitted by or under the associated occupational health and safety legislation.

39. Mines Inspection Act 1901 etc

The provisions of the Mines Inspection Act 1901, the Mines Rescue Act 1994 and the Coal Mines Regulation Act 1982 and the regulations and rules made there under shall, for the purposes of this Act, be associated occupational health and safety legislation.

60 It follows that the scheme of the Coal Mines Regulations Act 1982, which imposes a variety of obligations as to the operation and safety of coal mines such as that where this accident occurred, cannot be overlooked. (See for example the discussion of Haylen J in Rodney Morrison v Tahmoor Coal Pty Ltd (2002) 120 IR 153 at p184.) In that context, the submissions of the defendant, that it had but little control over what was done at this coal mine, even though under the Act, the coal mine was its place of work, when Mr Allen was sent to work there, have some force. In s33(1) of the Coal Mines Act, for example, it is provided:

33. Officials, order of seniority of mining officials and appointments

(1) A person shall not be appointed to a position at or in respect of a mine if that person's functions will involve the issuing of instructions with respect to the management or working of the mine, which instructions relate, either directly or indirectly, to the safety or health of persons employed at the mine, unless that person:

(a) is appointed as a mining official in accordance with this Part, or

(b) is appointed by the manager as a person believed by the manager on reasonable grounds to be technically qualified to issue the instructions.

61 This statutory regime presumably explains why it was that the parties agreed in paragraph 11 of the agreed statement of facts, that Mr Allen was inducted to work at the mine, in accordance with instructions issued by responsible mine officers. It was also agreed that Mr Elliott, a Powercoal employee, was the fitter in charge, at the time the accident occurred. On the evidence, Mr Allen plainly had no role in directing the work of the Powercoal employees. This followed from the relevant statutory scheme.

62 Also to be taken into account is that the defendant provided Mr Allen with instructions, which, if observed, would have prevented the accident occurring. The evidence showed that those instructions reflected the Waratah Hire manual for the machine in question. Whether the Powercoal employees were aware of the instructions, was not clear on the evidence. What was clear was that the mine employees were not following those instructions, but their employer Powercoal's instructions, even though these instructions were designed for a different machine, to that on which the work was being performed, namely one owned by Powercoal. The Powercoal instructions were inconsistent with the Powercoal mine isolation procedures, as well as the defendant's instructions for the work. This situation plainly exposed the Powercoal employees performing the work to the risks which led to the death of Mr Elliott.

63 Even then, had the machine operator not ignored another Powercoal standard operating instruction, which required that no one be near the machine when powered up, the accident could not have occurred. This instruction was also known to the other two Powercoal workers, also trained on the operation of the machine. It was also an instruction made known by the defendant to Mr Allen in its instructions.

64 The accident resulted from the automatic retraction feature of the machine safety device. The evidence showed that Powercoal, in conjunction with Waratah, had some time earlier investigated whether this feature should be modified, given an earlier incident. After consultation with the manufacturer, the conclusion reached was that the feature should not be modified, because it was a safety feature designed to overcome another risk, which had led to a death at another mine. This evidence demonstrated the unfortunate reality that even safety features can give rise to other risks, which must be guarded against, by those upon which the Act imposes various absolute obligations as to safety. What was known about this particular risk, as the result of the earlier investigation, no doubt helped explain the defendant's plea to these charges. It was plainly important for those working with this continuous miner, to be made aware of the risks posed by the automatic retraction feature of the machine software.

65 The evidence showed that Powercoal had earlier made its employees aware of this risk. It was not, however, again averted to in the instructions given by either Powercoal or the defendant, for this particular job. The risk could have been avoided, had the machine been started using the manual function on the remote. That, however, was directly contrary to the Powercoal instructions. Once the machine was started the automatic feature cut in. All three Powercoal employees were aware of this feature, but obviously had forgotten it. Perhaps understandably in the circumstances with which he was then confronted, with Mr Elliott trapped by the legs by the retracting jack, the machine operator's reaction was to turn the machine off, rather than using the toggle on the remote control to lower the jack. This was plainly a serious error. Turning the machine on again, as before, further exacerbated the series of errors which led to Mr Elliot's death. Mr Allen, who was not trained as an operator of the machine, was unable to assist the Powercoal employees in dealing with the situation with which they were confronted, for example by offering advice not to turn the machine off or on, because he was not armed with the relevant information about the safety feature which caused the jack to retract.

66 The defendant, in those circumstances pleaded guilty to both offences, accepting that more should have been done to train Mr Allen in the automatic retraction feature of the jack, when the machine was turned on and that if he had been, this knowledge might have assisted in avoiding the accident. I accept that the plea was properly made in the circumstances. I also accept, however, the defendant's submission that its culpability in all these circumstances was lower than that of Powercoal.

67 That conclusion flows inevitably from the fact that while Mr Allen was present at the mine to assist in the installation of the conveyor boom, he was not required to assist with the particular work which gave rise to the risk to safety here at issue. He was present when the accident occurred, after his return from the bathroom. The work which gave rise to the accident was then being performed by the Powercoal employees, at its direction and in accordance with its instructions. While the defendant had given Mr Allen instructions as to the installation work which the Powercoal employees were engaged upon, it was an agreed fact that he was obliged to work in accordance with Powercoal instructions, while working at the coal mine.

68 In all of these circumstances, while the risk to safety posed for the Powercoal employees was plainly serious, it is difficult to reach the same conclusion in relation to Mr Allen. This perhaps explains why the prosecution of Powercoal in relation to the risk to the safety of Mr Allen, was not finally pressed by the prosecutor. Why the section 15 prosecution was pressed in relation to the defendant, in those circumstances, is rather more difficult to comprehend. Nevertheless, I am satisfied that I cannot properly ignore the plea entered.

69 I am satisfied on the evidence that the system which the defendant had in place and upon which the defendant relied in mitigation, had some relevant deficiencies. While the defendant provided instructions to Mr Allen in relation to work to be performed on the machine, there was not a formal system in place to ensure that relevant information as to safety was exchanged between the defendant and Powercoal. While at the mine, Mr Allen was subject to Powercoal instructions. It follows that reliance by the defendant on an instruction to Mr Allen, that he provide the defendant's instructions for the work to Powercoal employees, was plainly inadequate to ensure that the discrepancy between the instructions being given by the defendant and Powercoal was either noted, or if noted, properly attended to. Given the provisions of the legislation regulating this workplace earlier referred to, it was undoubtedly important for those instructions to be provided to Powercoal, so that any discrepancies in the proper approach to the work could be detected, resolved and its employees and Mr Allen instructed accordingly.

70 Having regard to all of the evidence about the accident and the defendant's safety systems, I am satisfied that elements of general and specific deterrence must play a feature in the penalty imposed.

71 I turn then to the matters raised in mitigation. This was not a defendant which paid no regard to safety matters. Account must also be taken of the fact that had the instructions given to Mr Allen by the defendant been followed, this accident would not have occurred.

72 However, the evidence as to the mechanism established by the defendant for ensuring that risks to safety which arose at mine sites were notified to it by the mine owner or operator also plainly had deficiencies, which the defendant would do well to address. It is difficult to accept that a system which relied only upon employee notification to the defendant about safety risks which had arisen at a mine which such an employee had attended, could provide an adequate basis upon which the defendant could be assured that its obligations under the Act were met, particularly having regard to the limited control which it could exercise over work performed at such mines. It obviously required advice from a mine owner, in the event that such problems arose while one of its employees was present at a mine.

73 As to discount, I am satisfied that this was an early plea, entered as soon as the prosecutor had amended the applications for the orders sought in these proceedings and sought the dismissal of the third prosecution, to that point pursued against the defendant under the Act. A discount of 25%, having regard to utilitarian savings, is accordingly appropriate. As to the other matters relied upon, I take the view that a discount of a further 3% should follow, having regard to the other evidence relied upon. This, in my view, pays proper regard to the evidence as to this defendant's approach to safety matters, its response to the accident and its particular safety record.

74 As to these matters, the view which I have taken is that while the defendant was plainly not oblivious to its obligations under the Act, either prior to or after this accident, I am satisfied that its approach to ensuring the safety of its service technicians while at mine sites, required further improvement than it received following upon this accident. I do not discount the addition made to the jobpack. Nevertheless, I am satisfied that greater attention to ensuring co-ordination between the defendant and a mine operator, both before work is undertaken by the defendant and in the event of any safety risks arising while its employees are in attendance at a mine, would undoubtedly help prevent further tragedies of this kind. The apparent ad hoc arrangements in place as to these matters did not ensure that any departure in instructions being given by this defendant to its service technicians and by a mine owner to its employees, could be identified and addressed, before the work in question was performed. That ad hoc system does not appear to have been replaced by any more formal arrangement. Undoubtedly, it should be.

75 I turn to the amount of the penalty. Both parties submitted that the principle of parity had to be applied, yet its application, it seems to me, is somewhat problematic in this case. True it is that the prosecutions resulted from the same events which led to the prosecution in Powercoal, although in Powercoal the prosecution under s16, concerning Mr Allen, this defendant's employee, was not pressed. Each case also proceeded on the basis of a plea, in respect of offences amended at the day of the hearing and after other prosecutions were not pressed.

76 All the proceedings were brought by the same prosecutor. There was no explanation advanced as to why the prosecution in relation to Mr Allen was pressed against this defendant, but not Powercoal.

77 Another, more important matter, which must be considered, is that the facts agreed by the prosecutor in this matter, were significantly different to those which the prosecutor agreed in Powercoal. Had those facts been before the Court in Powercoal, the defendant in those proceedings must have had a much higher penalty imposed upon it.

78 In Powercoal, reference was made to the applicable isolation procedures and the continuous miner operating procedures, which were said not to have been applied and which did not specifically deal with the work being performed (paragraph 28 of the agreed facts). In paragraph 29, it was agreed that Powercoal had not given instructions to its employees in relation to the installation of the conveyor boom and specifically, that the machine had to be isolated. Quite different facts were agreed in this case.

79 Here, it was agreed that there were specific procedures dealing with the work in question which the Powercoal employees were applying and that they had been provided by Powercoal. The Powercoal instructions were instructions designed for another continuous miner owned by Powercoal and not the instructions provided by the manufacturer of the Waratah machine. The Powercoal instructions appeared to be inconsistent with its own isolation procedures.

80 There was no explanation as to how it came to be that such materially different facts were put to the Court in this case. The prosecution submitted, however, that the case had to be determined on its own facts. That approach must be accepted and a penalty fixed which has proper regard to the nature and seriousness of the offence here in question, having regard also to facts such as specific and general deterrence which I accept must here be taken into account.

81 It follows, nevertheless, that the application of the principle of parity in this case is problematic, given the divergence in the facts put to the Court in the two cases. The penalty in Powercoal was assessed on appeal with a discount of 35%, leading to the fine imposed of $155,000.00. Here, the discount has been assessed at 28%.

82 In my view, this defendant's culpability must be assessed as being considerably lower than that of Powercoal for the events which here led to the risks which became the subject of charges in these proceedings and in Powercoal. In my view these are lower range cases, with the defendant's culpability in respect of the risk to which the Powercoal employees were exposed, considerably lower than that of Powercoal, given the evidence here led. Undoubtedly, the risk to these employees was grave, but it cannot be overlooked that not only was it Powercoal employees who were performing the work which exposed them to the risk; they were following Powercoal instructions which exposed them to that risk and not those of the defendant, which had no authority to give them instruction in their work. The instructions given by Powercoal to its employees and those given by the defendant to Mr Allen were in conflict. Given the provisions of the Coal Mine Regulations Act 1982, it is difficult to see how the defendant, present only through Mr Allen, a service technician, could have overridden the instructions given to the employees by Powercoal, had he become conscious that his instructions from the defendant were different to those given by Powercoal to its employees. The evidence did not show that Mr Allen or the defendant were aware of this difference. This helps explain the plea to the s16 prosecution, but also puts into context the defendant's lower culpability, in respect of the risk in question.

83 As to the s15 prosecution involving Mr Allen, it is difficult to see that he was exposed to, too much risk at all. He was given instructions which, if followed, would have prevented this accident occurring. He, however, was not involved in performing the tasks which gave rise to the risk or the accident. He was required to perform other tasks while present in the mine. The evidence did not show that he was exposed to any risk when performing those tasks. This perhaps explains the prosecutorial decision not to pursue Powercoal at all, in relation to any risk to which it might have exposed Mr Allen.

84 The defendant accepted, nevertheless, that it had been involved in a breach of the Act, in failing to instruct Mr Allen in the automatic jack retractions feature of the miner. Inescapably, while the plea has been accepted, that offence must be assessed as falling within a low range. I have so approached the matter in assessing penalty.

85 I have assessed the penalty to be imposed, having regard to the principle of parity as earlier discussed. The principle of totality, discussed in Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181, also here arises for consideration because the two charges contain common elements, as the essentially identical particulars revealed. The application of the principle of totality presents some difficulties, given the view I have reached on the agreed facts as to the respective criminality involved in the two offences. The defendant must not be punished twice for the same conduct. An assessment of the overall criminality here involved is also required, in order to ensure that the aggregate penalty is just and appropriate.

86 I have determined that the total aggregate penalty appropriate, in all of these circumstances, is $90,000. That result has followed from a penalty of $30,000 in relation to the s15 charge and $90,000 for the s16 charge. A total penalty of $120,000 would, however, be excessive given the almost total overlap between the two offences. The result is a reduced penalty of $20,000 for the s15 charge and $70,000 for the s16 charge. Application of the discount earlier discussed results in final penalties of $50,400 and $14,400, or $64,800 in total.

Orders

87 For all the reasons given, I find the defendant guilty of the charges and enter convictions accordingly. I make the following orders:

1. The defendant is to pay a penalty of $50,400 in Matter Number IRC 4401 of 2001 and $14,400 in Matter Number IRC 4396 of 2001, with a moiety to the prosecutor.

2. The defendant is to pay the prosecutor's costs, as agreed, or in the absence of agreement, as assessed by the Court.

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LAST UPDATED: 19/03/2004