Inspector Mason v Graincorp Operations Limited [2005] NSWIRComm 328 (13 September 2005)

Last Updated: 19 September 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Mason v Graincorp Operations Limited [2005] NSWIRComm 328

FILE NUMBER(S): IRC 5048

HEARING DATE(S): 11/08/2005

DECISION DATE: 13/09/2005

PARTIES:

PROSECUTOR

WorkCover Authority of New South Wales (Inspector Mason)

DEFENDANT

Graincorp Operations Limited

JUDGMENT OF: Staff J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr G A Farmer of counsel

Solicitor: Mr N A Correy

Moray & Agnew

DEFENDANT

Mr P Skinner of counsel

Solicitor: Mr M Stiles

Goldbergs

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Ramsay-Mayo) (2000) 49 NSWLR 610

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

Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor (2005) NSWIRComm 266

Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464

Markarian v R (2005) 215 ALR 213

R v Johnson [2004] NSWCCA 76

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

Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416

Veen v R (No 2) (1988) 164 CLR 465

WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh and Anor (1995) 59 IR 89

WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) (2000) 99 IR 163

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Occupational Health & Safety Act 1983

Occupational Health & Safety Act 2000

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Staff J

13 September 2005

Matter No IRC 5048 of 2004

INSPECTOR GARY MASON v GRAINCORP OPERATIONS LIMITED

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

JUDGMENT

[2005] NSWIRComm 328

1 Graincorp Operations Limited ("the defendant") conducts the business of commercial storage and handling of grain from various sites in New South Wales including a grain handling depot at Old Tarrawan Road, Narrabri in New South Wales.

2 On 30 December 2003, Michael John Ford, an employee of the defendant, while attempting to descend from a rail outlet access platform, using a portable ladder, fell a distance of approximately three metres, landing on a metal grid copper area at ground level. As a result of the fall, Mr Ford sustained injuries including laceration to his head which required some 20 or more stitches, a laceration to the left knee and also a fractured left wrist. Mr Ford was working at the defendant's depot at Old Tarrawan Road, Narrabri at the time of the incident.

3 The defendant was charged pursuant to s 8(1) of the Occupational Health & Safety Act 2000 ("the OH&S Act") in relation to what happened on 30 December 2003.

4 It was alleged that the defendant did fail:

Contrary to s8(1) of the Occupational Health & Safety Act 2000 to ensure the health, safety and welfare at work of its employees including Michael John Ford ('the worker') in that the worker while attempting to descend from a rail outlet access platform ('the platform') using a portable ladder, fell a distance of three metres approximately, landing on the metal grid hopper area at ground level below, as a result of which fall he sustained serious personal injuries including a laceration to the head and a fractured left wrist by reason that:

1. The defendant failed to ensure that the means of access to or exit from the platform was safe and without risk to health in that:

(a) The portable ladder in use for accessing and existing the platform was not securely fixed to the platform and was unsafe;

(b) The portable ladder did not extend one metre above the platform level;

(c) The area at the top of the portable ladder access to the platform was open on the access side without a handrail to secure it.

5 The defendant pleaded guilty to the charge.

6 An agreed statement of facts was tendered which was in the following terms excluding formal parts:

5. At all material times the defendant conducted the business of commercial storage and handling of grain from various sites in New South Wales including a grain handling/depot at Old Tarrawan Road, Narrabri in the state of New South Wales ('the depot').

6. At all material times the worker was employed by the defendant as a labourer/grain handler. The worker was a casual employee employed by the defendant during the harvest seasons since 1999. His main duties at the depot included the unloading and loading of grain to and from road vehicles and railway trucks.

7. At an inspection of the depot by the prosecutor on 30 December 2003 the following observations were made:

(i) The depot is situated at the northern end of Old Tarrawan Road, Narrabri.

(ii) The depot is adjacent to the Narrabri West railway line with two railway sidings running through it.

(iii) On the east side of the depot is a large concrete and steel metal clad grain storage shed. At the north-west corner of the grain storage shed are two circular concrete storage silos. On the west side of the two circular silos is a large concrete scalloped circular structure identified as the mushroom silo.

(iv) In the area between the mushroom silo and the two circular silos were two railway sidings leading from the Narrabri West main line. A metal clad roof covered this area.

(v) Under the covered area on the west side of the railway sidings at ground level is a truck hopper area measuring approximately 7.8m in length and 4m in width. The hopper area consisted of cast iron grates.

(vi) Along the east side of the hopper area were two raised metal platforms known as rail outlet access platforms.

(vii) One rail outlet access platform was situated on the south side in relation to the rail sidings and the other was situated on the north side.

(viii) The south rail outlet access platform was 3.36m high and measured 600mm by 600mm. The platform was supported from the ground level by 75mm angle iron in a box welded configuration.

(ix) The south rail outlet access platform was connected to the north rail outlet access platform by a drop down counter-weighted platform measuring 600mm by 1.2mm (sic) hinged on the east side of the south rail outlet access platform. The drop down platform had top and middle rails on three sides.

(x) The south rail outlet access platform had top and middle handrails on the north and west sides. On the east side it was open to allow access to the drop down platform connecting it to the north side access platform. The south side of the platform had no rails fitted but there were two galvanised metal chains fitted to the south-west upright at the top and middle rail levels with corresponding hooks on the south-east upright.

(xi) There was a portable aluminium ladder resting against the south side of the south rail outlet access platform.

(xii) The portable ladder measured 3.6mm in length with twelve 30mm rungs expanded into 320mm wide styles. The base of the ladder on inspection was positioned 1.1m from the base of the south rail access platform and was propped against a metal chute. The top of the ladder was resting against the platform with 150mm of the styles protruding above the deck of the south rail access platform. The portable ladder was not secured at the top.

(xiii) The north side rail outlet access platform was 600mm wide and 2m long and was supported by angle iron welded to the roof structure above it. The access ladder to the ground from the north rail outlet access platform was permanently attached to it. The ladder measured 5m in length and was a steel fabricated rung ladder that protruded 1.4m above the deck of the platform. The top of the ladder had a handrail encircling the access.

8. The rail outlet access platforms were accessed by the defendant's workers in order to conduct the operation of filling the railway trucks with grain. This task was performed from the storage facilities by the defendant's workers standing on the access platforms and using a long metal bar to direct the outlet spouts over the top of openings in the railway trucks which passed underneath.

9. On 30 December 2003 the worker had been carrying out the operation of filling railway trucks with grain from the south rail outlet access platform.

10. The worker had used the portable aluminium ladder to access the platform. At all material times the ladder was placed in a position with its base against the overflow chute at ground level and the top of the ladder resting against the platform with 150mm of the ladder protruding above the platform level. The portable ladder was not secured at the top where it was resting on the platform. At approximately 11.30am on 30 December 2003 the worker while attempting to access the ladder in order exit from the platform, fell some three metres to the hopper floor below.

11. As a result of the fall the worker sustained personal injuries including laceration to his head which required some 20 or more stitches, a laceration to the left knee and also a fractured left wrist.

12. Subsequent to the accident on 30 December 2003 the defendant has removed the rail access platform from which the worker fell and replaced it with an appropriate platform with access to ladders that comply with the Australian Standard AS1657 Fixed Platforms, Walkways, Stairs and Ladders - Design and Construction.

13. At all material times on and prior to 30 December 2003 the defendant had in place a safety manual titled 'Safe and Healthy Practices - A Guide to Basic Safe and Healthy Work Practices'.

14. Contained in this manual was a section headed 'Working in High Places' which contained the following clause:

'When placing a ladder (other than a stepladder) in position, make sure it will not slip and attach it at the top or get a workmate to hold it.'

15. On 9 October 2003 the worker had completed an induction training at which he was provided with a copy of the defendant's safety manual.

16. At all material times on 30 December 2003 work involving access to the south rail outlet platform was conducted using the portable ladder without it being affixed at the top or without the requirement of a fellow worker holding the ladder being enforced.

17. On 6 February 2004 the Informant obtained a record of interview of Shane Leonard. Question and answer 20 to 23 are noted as follows:

Q 20. Why was the Procedure changed from that documented in Graincorp Rail Out - Loading Platform Standard Work Instructions Draft to the procedure used on the 30 December 2003?

A. 20. From 1 October 2003 Graincorp Operation Limited had instigated an OH&S directive to cease the practice of utilizing the rail wagon as a platform for train loading. This meant that employees could not use the rail wagon as per previous procedures. This change originated from the requirement to meet legislative requirements of working heights. Our previous procedure that had been utilized for many years of working on top of the rail trucks un-restrained had been changed approximately 12 months previously with the introduction of the harness system attached to the rail truck. This system was a stopgap system with the aim to eliminate staff from utilizing rail trucks as a platform. The longer-term solution is to install over rail platforms at all out-loading sites.

This platform project commenced in January 2003 and is progressing across GrainCorp Operation Limited network. At the time of the incident Narrabri Depot had not been up dated with new platforms with the aluminium ladder being temporary measure to avoid accessing the platform from the rail truck.

Q.21 I now show you single paged document Dated 1 October 2003 and titled WRAC Assessment Area Boggabri Project Trails for Rail Truck top Door opening from Platform. Was this the risk assessment carried out when accessing the top of rail trucks ceased?

A. 21. Yes

Q. 22 With reference to Question 21 was a similar risk assessment carried out at the GrainCorp Depot at Narrabri?

A. 22 A formal WRAC assessment has not been noted at Narrabri however staff would have assessed the risks through our Take 5 Safety Program prior to undertaking the task.

Q. 23 What changes to the procedures for loading grain into Rail Trucks have been made since the accident on 30 December 2003?

A. 23. The temporary Platforms have been completely removed and purpose built over rail platforms have now been installed at the site.

18. The alleged offence committed by the defendant under s8(1) of the Occupational Health & Safety Act 2000 is that on 30 December 2003 the defendant failed to ensure the health, safety and welfare at work of its employees including the worker in that the worker, while attempting to descend from the platform using a portable ladder, fell a distance of approximately three metres, landing on a metal grid hopper area at ground level below, as a result of which fall he sustained personal injuries including laceration to the head and a fractured left wrist, by reason that:

(a) The defendant failed to ensure that the means of access to or exit from the platform was safe and without risk to health in that:

(i) The portable ladder in use for accessing and exiting the platform was not securely fixed to the platform and was unsafe;

(ii) The portable ladder did not extend one metre above the platform level;

(iii) The area at the top of the portable ladder access to the platform was open on the access side without a handrail to secure it.

(b) The defendant failed to provide such information and supervision in relation to the work conducted from the platform such as may have been necessary to ensure the health and safety at work of its employees.

7 The prosecutor also tendered a bundle of documents, comprising the following:

(i) Amended application for order pursuant to s 8(1) of the Occupational Health & Safety Act 2000.

(ii) An agreed statement of facts.

(iii) A factual report prepared by Inspector Mason dated 8 January 2004.

(iv) Coloured photographs taken by Inspector Mason numbered 1 to 12.

(v) A statement of an injured person, Michael Ford dated 9 January 2004.

(vi) Final Interview Statement of Shane Leonard dated 6 February 2004.

(vii) WRAC Assessment. Area:- Boggabri Project:- Trials for Rail Truck Top Door Opening from Platform dated 1 October 2003.

(viii) A document entitled Employee Training Data in respect of Michael Ford dated 16 January 2004 together with various attachments.

(ix) A record of prior conviction in respect of Graincorp Operations Limited noting 8 prior convictions dated 4 August 2005.

(x) Batty v Graincorp Operations Limited [2002] NSWIRComm 49 (15 February 2002).

(xi) WorkCover Authority of New South Wales (Inspector Martin) v Graincorp Operations Limited [2002] NSWIRComm 312 (14 November 2002).

(xii) WorkCover Authority of New South Wales (Inspector Boyle) v Graincorp Operations Limited [2003] NSWIRComm 122 (25 March 2003).

(xiii) Inspector Barry Malone v Graincorp Operations Ltd [2003] NSWCIMC 55 (15 May 2003).

(xiv) Inspector Mark Barber v Graincorp Operations Ltd [2003] NSWCIMC 2 (13 January 2003)

(xv) Inspector Evans v Graincorp Operations Limited [2003] NSWIRComm 153 (16 May 2003).

8 In addition, the prosecutor tendered an extract from the Site Operations Manual in respect of the rail outloading platform and a handbook titled "Safe & Healthy Practices".

9 The defendant tendered an affidavit of Paul Robert McConaghy, Industrial Relations Manager of the defendant who was required for cross-examination. Mr McConaghy gave evidence regarding the reporting structure of the defendant and stated the defendant employs some 800 permanent staff in New South Wales, Victoria and Queensland with some 500 permanent staff in New South Wales. In addition, there are approximately 2,100 casual staff employed during the normal harvest season in New South Wales, Victoria and Queensland of which some 1,200 to 1,500 may be employed in New South Wales alone depending on the nature of the season.

10 Mr McConaghy stated that the defendant had some 243 sites in New South Wales, 240 in Victoria and 71 in Queensland, of which 190 in New South Wales, 107 in Victoria and 57 in Queensland are operational. In addition, there are nine seaboard export terminals operated by the defendant.

11 Mr McConaghy deposed that he was familiar with the incident in which Mr Ford was injured and annexed a copy of the accident report together with correspondence and the safety report provided to the prosecutor.

12 Mr McConaghy described the correspondence as follows:

The correspondence from Mr Leonard to Mr Mason outlined that on 1 October 2003 Graincorp had issued an internal directive to cease its then practice of utilising railway wagons as a platform for train loading. Such directive was provided on the basis that it was determined that the risks involved were unacceptable and accordingly, task specific platforms were then to be installed progressively throughout Graincorp's storage network as a priority. Pending resource allocations throughout the vast site network, and noting that the ultimate cost expenditure on such modifications was some $6,000,000, the task was to be completed at all sites within 48 months. It was then determined that modifications would take place to the outload platform at Narrabri consistent with some other sites to continue to allow grain outloading, but whilst removing staff from the top of wagons. This involved the utilisation of existing platforms that had been previously accessed directly from the rail wagons by the use of ladders consistent with provision of same to various staff. The modifications at Narrabri were completed by January 2004.

13 Mr McConaghy deposed that on 1 October 2003, risk assessments were carried out which indicated a consideration of the risks associated with the task. The risk assessment provided that the first step in operation was to secure the ladder to the platform. Pages 12 and 13 of the Safe and Healthy Practices booklet of the defendant were also provided by Mr McConaghy under the heading "Working in High Places". The booklet provided "when placing a ladder (other than a step ladder) in position, make sure it will not slip and attach it to the top or get a work mate to hold it".

14 It was acknowledged by Mr McConaghy that the incident with Mr Ford took place due to a breakdown whereby those involved in working with him did not comply with the induction training and properly assess the risk.

15 Documentation was also provided by Mr McConaghy that showed Mr Ford underwent a pre-harvest induction training on 9 October 2003 and an occupational health and safety site familiarisation walk at Narrabri on 12 October 2003. Mr Ford had been working for the defendant at various times during the six years prior to the incident.

16 Mr McConaghy deposed that following the incident an improvement notice was issued and by 6 February 2004, the temporary platforms at the Narrabri depot had been removed and purpose built over rail platforms were installed at the site. Mr McConaghy stated that Mr Ford was able to return to work on 7 January 2004 and has continued working for Graincorp as a casual. All workers compensation entitlements to Mr Ford were met including the payment of all medical expenses and wage loss.

17 Mr McConaghy stated that he was of the opinion that the defendant has a policy to carry out operations as a "good corporate citizen" and that the defendant operates the Graincorp Foundation in which one percent of all its after tax profits are donated to rural centres to provide and assist the region in which the company operates.

18 During cross-examination, Mr McConaghy acknowledged that the Workplace Risk Assessment ("WRAC") dated 1 October 2003 was issued to the Boggabri Depot of the defendant but not to the Narrabri Depot, although workers at both Depots undertake the same tasks. Mr McConaghy conceded that if the WRAC assessment had been provided to staff at Narrabri, there was a probability that the accident could have been prevented. It was also accepted by Mr McConaghy that the ladder did not protrude or extend one metre above the platform on which the workers were required to step which would have been readily observable.

19 In re-examination, Mr McConaghy was taken to Mr Ford's employee training data which recorded that between May 2001 and October 2003 Mr Ford had attended the following courses:

Track Safety Awareness; Operational Training Plant & Equipment; Tarp Roller; Operational Training Plant & Equipment; Confined Space Gas Monitor; Chemical Application; OH&S Pre-Harvest Induction and OH&S Site Familiarisation Walk.

20 Mr McConaghy's evidence was that the last course would have included induction in respect of "working in high places requirements and the use of ladders".

Submissions of the Prosecutor

21 Mr G A Farmer of counsel, who appeared for the prosecutor referred to the decision of Wright J President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) (2000) 99 IR 163 at 185 - 186 as summarising the matters to be considered by a court in sentencing. Those matters include:

(a) the nature and quality of the offence, including the objective seriousness of the offence charged;

(b) the maximum penalty available;

(c) whether a plea of guilty has been entered;

(d) subjective and/or mitigating factors;

(e) prior convictions;

(f) the size of the organisation;

(g) the foreseeability of the risk of injury; and,

(h) the principles of parity, consistency and totality.

22 Mr Farmer submitted that the offence was a serious breach in that the temporary system which had been adopted, was one which was contrary to safety guidelines in three respects and one where the defendant's own guidelines appeared to have been ignored.

23 Counsel noted that as the defendant has previous convictions, the maximum penalty is $825,000. Counsel submitted that there was a need for both general and specific deterrence referring to Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Ramsay-Mayo) (2000) 49 NSWLR 610 at [73].

24 Mr Farmersubmitted that when considering a statute giving expression, as a matter of public policy, to standards of safety, the defendant has a positive obligation of informing itself of the circumstances of safe working: WorkCover Authority of New South Wales (Inspector Gregory Thomas Dawson) v Waugh and Anor (1995) 59 IR 89 at 100.

25 It was submitted that the risk of injury was both obvious and readily foreseeable and that the availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. It was further submitted that in this case the risk of injury occurring was obvious and easily minimised and that Mr Ford suffered serious injuries as a result of him falling from in excess of three metres to the ground.

26 Finally, counsel acknowledged that the defendant was entitled to have taken into account its plea of guilty in mitigation of the objective seriousness of the offence and that it was appropriate to apply the guideline judgment in R v Thompson; R v Houlton (2000) 49 NSWLR 383. The prosecutor sought costs and a moiety of the fine.

Submissions of the Defendant

27 Mr P Skinner of counsel, who appeared for the defendant, commenced his submissions by emphasising that the defendant is a very large company with many employees and a large number of sites over the eastern seaboard.

28 Mr Skinner expressed contrition, on behalf of the defendant, and stated that the defendant "will continue to work to try and squeeze out all possible risks in its operation".

29 Counsel conceded that there had been a breakdown in respect of this incident. However he submitted that this was not a matter that should be assessed in the mid to high range but rather in the low to mid range of offences.

30 Mr Skinner acknowledged that the defendant had eight previous convictions but that two of these arose out of the same incident. The most recent incident for which the defendant was prosecuted occurred on 11 September 2001 with four offences occurring in 1999 and one each in 1998, 2000 and 2001. Mr Skinner submitted that since the last offence in 2001, the defendant had been trying to improve its procedures and should be given credit for that. The defendant has safety booklets, WRAC procedures, safe working instructions, procedures to stop the use of portable equipment and an ongoing policy of re-visiting matters. It should be given credit for each of these matters.

31 Counsel submitted that this incident occurred because procedures which were in place and documented were not followed, those being the requirement for a ladder to be secured at the top or held by a workmate. Counsel observed that since the incident, the possibility of this sort of accident occurring again has been prevented by the new platforms being put in place.

32 Mr Skinner took the court through each of the previous offences, submitting that each was distinguishable on its facts from the present case.

33 In relation to the principles to be applied in respect of sentencing Mr Skinner referred the Court to Boland J's decision in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor (2005) NSWIRComm 266. In this case, his Honour considered how the decision of the High Court in Markarian v R (2005) 215 ALR 213 impacted upon this jurisdiction. Mr Skinner encouraged the Court to adopt and follow his Honour's approach.

34 This led Mr Skinner to submit that the defendant was entitled to a discount of 25 percent for the utilitarian value of early plea and that the Court was not limited to 10 percent for the additional subjective factors. Counsel submitted all the factors were required to be weighed and that there was no cap on the appropriate discount that the Court should apply. Mr Skinner submitted that I should start with an assessment of the objective seriousness of the offence and then apply a substantial discount for all of the subjective factors of the defendant which have been put before the Court and which are separate to the discount it is entitled to for the early plea. Those factors included the good corporate citizenship of the company, the efforts it makes to comply with the OH&S Act, the practicality of looking at every site and every worker and every piece of equipment, the contrition expressed through its counsel, which, it was submitted, should result in a penalty in the low to medium range.

Consideration

35 The principles applicable to the determination of penalty in proceedings brought under the Act are now well settled.

36 The failure to which the defendant has pleaded guilty in this matter was a failure to ensure that the means of access to or exit from a platform using a portable ladder was safe and without risk to the health of Mr Ford and the failure to provide such information and supervision in relation to the work conducted from the platform so as to ensure the health and safety of its employees.

37 This is not a case where the defendant has no systems in place in relation to occupational health and safety. The evidence indicates that the defendant does take occupational health and safety seriously but on 30 December 2003, during a period when the defendant was modifying outload platforms at its sites to remove unacceptable risks, an incident occurred at its Narrabri Depot.

38 On 1 October 2003, the defendant had instigated an occupational health and safety directive to cease the practice of utilising rail wagons as a platform for train loading. As an "interim system", an aluminium ladder was used to provide the employee with access to the 3.36 metre high platform. The critical failure was that the ladder had been placed in a position with the base against the overflow chute at the floor level with the top resting against the platform. The top of the ladder extended 150 mm above the platform. It is required to extend one metre above such platform. The ladder was not secured at the top. When Mr Ford completed his work, he stepped onto the ladder which moved sidewards, causing him to lose his footing and fall.

39 In October 2003, the defendant issued a WRAC assessment relating to the temporary measures and the manner in which the work was to be performed. This statement was issued to those employed at its Boggabri Depot, however, a similar WRAC assessment was not forwarded to the Narrabri Depot where this incident occurred. The first item on the assessment was a direction to "secure ladder by platform" by tying off with ropes.

40 I accept that the defendant had in place an induction programme designed to inform employees of the dangers of working with ladders and working at heights. However, although the defendant forwarded a WRAC statement to other loading sites, no such document was forwarded to the Narrabri site. Had such a document been forwarded to the Narrabri site, this could have brought home to the employees the need to secure the ladder. Appropriate supervision of the site should have also revealed the unsafe practice being utilised by the defendant's employees. This was especially so when the temporary practice was put in place to replace another practice that was deemed to be unsafe and the temporary practice was continued for a period of about two months.

41 The risk of working with an unsecured ladder is obvious and in fact were known to the defendant because the temporary method of work implemented at the Boggabri Depot was designed to avoid a ladder slipping and a person falling to the ground.

42 The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. In my view, the offence is serious. In this case, the extent of the defendant's failure to provide adequate supervision, information and instruction and a safe system of work and the likelihood of those failures resulting in serious injury or death is a matter to be taken into account in determining an appropriate sentence.

43 It will be a serious offence where there is an obvious, or foreseeable risk, to safety against which appropriate measures were not taken, even though such measures were available and foreseeable: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464. In this matter the risk of injury was both obvious and readily foreseeable. The risk was one that was recognised by the defendant and one which the defendant had raised with employees. Methods for minimising such a risk form part of the defendant's safety manual.

44 The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the objective seriousness of the offence. In this matter, appropriate measures were not taken, in my view, even though such measures were available and feasible. These included the failure to provide to the employees at Narrabri a WRAC statement in relation to the temporary system, tying off the ladder at both ends and providing a ladder that was a sufficient length to properly perform the task at hand. Similarly, there was a failure to provide appropriate supervision of the work being undertaken or to have alerted the employees to the defects in the system that was being used by the employees.

45 Although the gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of the penalty, the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety. In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32], the Full Bench stated:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.

46 In this matter, in my view, the risk of injury occurring was obvious and easily minimised. The work was being undertaken at a height of 3.36 metres above a ground surface of concrete and metal. Any fall was likely to result in serious injury. At worst, a death could have occurred. Mr Ford suffered serious injuries as a result of him falling in excess of three metres to the ground below. He remained off duty from 30 December 2003 to 7 January 2004 when he returned for one hour on light duties. He remained on light duties for approximately one month.

47 In determining an appropriate sentence, consideration must be given to general and specific deterrence. In respect of general deterrence, the Full Bench observed in Capral Aluminium Ltd at [73], citing with approval the comments of Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388:

"...the fundamental duty of the Court in this important area of public concern, ... [is], to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace."

48 In respect of specific performance, I note the defendant's attitude to workplace safety and the steps taken to improve safety following the accident. The defendant, subsequent to the accident, removed the rail access platform from which the worker fell and has replaced it with an appropriate platform with access to ladders that comply with the Australian Standard AS1657 Fixed Platforms Walkways, Stairs and Ladders - Design and Construction. The defendant, however, continues to be an employer operating 243 sites within New South Wales for the purposes of managing grain and its distribution. As was observed in Capral at [77]:

...Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive...

49 Taking into account the size of the defendant's organisation and the fact of previous convictions (which I will discuss in more detail later in these reasons), there is a need for a strong element of both general and specific deterrence to remind the defendant of the need to be pro-active in searching out and eliminating risks.

50 There are a number of relevant subjective considerations. It was common ground that the defendant had entered a plea of guilty at the earliest opportunity in respect of the amended application for order. Applying the guideline judgment in R v Thompson; R v Houlton, the defendant is entitled to a discount of 25 percent for the utilitarian value of the plea. It was also common ground that there was co-operation with the WorkCover Authority of New South Wales.

51 Mr Skinner also pointed to what he described as the "good corporate citizenship" of the defendant, the efforts it has made to comply with the Act, the practicality of looking at every site and every worker and every piece of equipment and the contrition expressed by the defendant.

52 The defendant has eight prior convictions and in my view, has not shown good corporate citizenship and is therefore not entitled to any discount in this regard. I reject Mr Skinner's submission on this issue. Similarly, it is no answer to the absolute obligations imposed by the Act for any allowance to be given to the defendant's practicality of looking at every site and every worker and every place of equipment. The Act requires the defendant to ensure that employees are not exposed to risks to their health or safety whilst at work. The defendant is required to be proactive and vigilant in searching out risks to the safety of its employees.

53 I am prepared to take into account the contrition expressed by the defendant.

54 Submissions were advanced by both counsel in respect of the defendant's prior convictions. The first conviction concerned a matter dealt with in September 1999 in which a penalty of $2,500 was imposed by the Chief Industrial Magistrate. The second was an offence dealt with in the first instance by her Honour Glynn J who imposed a penalty of $26,000. That was altered on appeal to a penalty of $65,000. Both of those offences and penalties revolved around the operation of an electrically powered tarpaulin rolling machine.

55 The third conviction imposed by Staunton J related to the failure to adequately guard a grain drive overhopper. A penalty of $78,000 was imposed on the defendant. The fourth conviction was also imposed by Staunton J in circumstances where the defendant pleaded not guilty to an offence under s 15(1) of the Occupational Health & Safety Act 1983 ("the 1983 OH&S Act"). The offence related to the method of clearing grain blockages. Her Honour imposed a penalty of $135,000 on the defendant.

56 The fifth conviction was imposed by the Chief Industrial Magistrate. This matter involved a worker being bumped by a crane, falling and sustaining injuries. A fine of $25,000 was imposed on the defendant.

57 The sixth and seventh convictions related to offences pursuant to s 15(1) and s 16(1) of the 1983 OH&S Act. The prosecutions related to a Freightcorp grain freight train striking a bobcat obstructing the railway track at a grain siding. The defendant pleaded not guilty to the offences. The Chief Industrial Magistrate imposed a fine of $25,000 in respect of the s 15 breach and a fine of $15,000 in respect of the s 16 offence.

58 The eighth offence related to an employee of the defendant lifting his empty tipping trailer which came into contact with overhead high tension power lines resulting in the employee sustaining third degree burns to both heels and the left palm of his hand. Peterson J imposed a fine of $87,500 on the defendant.

59 Although it can be seen from the above analysis that none of the prior offences are of a nature and degree such as the offence before me, it is wrong to submit, as Mr Skinner did, that this offence is distinguishable from the earlier offences and should be considered independently of the earlier convictions. I reject the submissions. The antecedent criminal history of the defendant may be taken into account in determining the sentence to be imposed.

60 In Veen v R (No 2) (1988) 164 CLR 465, the High Court considered the impact of the criminal history of an offender upon sentence. The majority (Mason CJ, Brennan, Dawson and Toohey JJ) wrote at 477 - 478:

There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. (Footnotes omitted).

61 In R v Johnson[2004] NSWCCA 76, it was held that the aggravating factor expressed in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, that "the offender has a record of previous convictions", should be read in light of the common law principle expressed in Veen v R (No 2), that a criminal record was not an aggravating feature so as to increase the seriousness of the offence but was relevant to issues such as denunciation and deterrence. The Court held it was unsatisfactory to refer to a previous record as an aggravating factor without explaining how the record was taken into account.

62 It is therefore appropriate that I take into account the antecedent criminal history of the defendant as, in my view, "it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind."

63 The offence cannot be characterised as an aberration in my view, but should be seen as continuing an attitude of disobedience to the law.

64 I accept that the defendant has significant training programmes and operational procedures in place covering a diversity of workplace circumstances and situations and that this incident occurred during a period when the defendant was upgrading its safety systems at grain depots and through a lapse, an accident occurred.

65 I also accept that the defendant, through the Graincorp Foundation provides one percent of its after tax profits to be used in rural centres to provide and assist the region in which the company operates. It was submitted that this amounted to many hundreds of thousands of dollars.

66 Mr Skinner submitted that Boland J's analysis of Markarian in Inspector Yeung v Howie Herring & Forsyth Pty Limited was correct and should be followed by this Court, which it was submitted meant that any discount for the subjective factors should not be limited to 10 percent.

67 Boland J in Inspector Yeung v Howie Herring & Forsyth, after considering Markarian, stated at [31]:

[31] It seems to me that what flows from the joint judgment in Markarian is that:

1 It is impermissible to look first to a maximum penalty, and to proceed by making a proportional deduction from it for the various factors to be taken into account in sentencing [31].

2 Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error [24].

3 There is no universal rule that "instinctive synthesis" is the sentencing method the courts should adopt [36].

4 Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached [27].

5 Sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden [39].

68 Later at [40] his Honour wrote:

[40] The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting. Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act. I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors.

69 I respectfully agree with his Honour and propose to adopt the same approach in determining sentence in this matter.

70 Taking into account all of the relevant circumstances and noting that the earlier offences result in a maximum penalty of $825,000 in respect of the offence under consideration, I consider an appropriate penalty is $180,000.

ORDERS

The Court makes the following orders:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $180,000 with a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as assessed in accordance with the Court's Rules.

LAST UPDATED: 13/09/2005