Inspector Jelley v Consolidated Extrusions Management Pty Ltd [2007] NSWIRComm 299 (7 December 2007)

Last Updated: 25 January 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Jelley v Consolidated Extrusions Management Pty Ltd [2007] NSWIRComm 299



FILE NUMBER(S): IRC 2183

HEARING DATE(S): 24 October 2007

DATE OF JUDGMENT: 7 December 2007
PARTIES:
INSPECTOR CRIS JELLEY
Prosecutor

CONSOLIDATED EXTRUSIONS MANAGEMENT PTY LTD
Defendant


CORAM: Schmidt J


CATCHWORDS: Occupational health and safety - prosecution under section 8(1) of the Occupational Health and Safety Act 2000 - safety of racking system in warehouse - fatality - plea of guilty - specific and general deterrence - discount - victim impact statements - penalty imposed - moiety to prosecutor - costs as agreed or assessed

LEGAL REPRESENTATIVES

PROSECUTOR:
Mr D Buchanan SC with Mr R Reitano, counsel
SOLICITORS:
Legal Group
WorkCover Authority of NSW
DEFENDANT:
Mr B Hodgkinson SC
SOLICITORS:
Sparke Helmore

CASES CITED: Cameron v The Queen (2002) 209 CLR 339
R v Mansour (1999) 29 MVR 409

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000



JUDGMENT:

- 33 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Schmidt J

7 December 2007

Matter No IRC 2183 of 2006

INSPECTOR CRIS JELLEY v CONSOLIDATED EXTRUSIONS MANAGEMENT PTY LTD

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

JUDGMENT

[2007] NSWIRComm 299

1 On 14 April 2004, Robert Ronald Keys and Liam O'Donnell were working at the Ingleburn premises of the defendant, Consolidated Extrusions Management Pty Ltd, trading as 'Conex'. Mr Keys suffered fatal injuries when a bundle of tubular metal bars, weighing approximately 500 kilograms, fell in the warehouse where he and Mr O'Donnell were working. The bundle struck both Mr Keys and Mr O'Donnell, as it fell. The defendant has pleaded guilty to a charge brought against it under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). This judgment deals with the question of penalty.

2 The amended charge to which the plea was entered in September 2007 provided:

that CONSOLIDATED EXTRUSIONS MANAGEMENT PTY LTD (ACN 003 123 573), a corporation whose registered office is situated at Crane Group Limited, Level 14, Phillips House 15 Blue Street, North Sydney in the state of New South Wales ("defendant"), being an employer, on 14 April 2004, at 10 Williamson Road, Ingleburn in the State of New South Wales ("premises")

FAILED TO

Ensure the health safety and welfare at work of all its employees, and in particular, Robert Ronald Keys and Liam O'Donnell, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

1. The defendant failed to maintain a safe system of work in relation to the storage, accessing and removal of product stored on racking in the "export area" of the warehouse so as to eliminate the risk of product falling onto employees.

2. As a result of the defendant's contraventions, Robert Ronald Keys and Liam O'Donnell were placed at risk of injury.

3. As a result of the defendant's contraventions, Robert Ronald Keys suffered fatal injuries.

3 The parties tendered an agreed statement of facts which provided:

1. At all material times the Prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 2000 and empowered by Section 106 (“the Act”) and empowered under Section 106 of the Act to institute proceedings in this matter.

2. At all material times Consolidated Extrusions Management Pty Ltd (ACN 003 123 573), (“the defendant”), a corporation with its registered office located at Crane Group Limited, Level 14, 15 Blue Street, North Sydney in the State of New South Wales, was an employer, employing persons including Robert Ronald Keys and Liam O’Donnell.

3. The defendant pleads guilty to a charge that, on 14 April 2004, at 10 Williamson Road, Ingleburn in the State of New South Wales (premises), the defendant, being an employer, failed to ensure the health safety and welfare at work of all its employees and, in particular, Robert Ronald Keys and Liam O’Donnell, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

4. The particulars of the charge are:

i. The defendant failed to maintain a safe system of work in relation to the storage, accessing and removal of product stored on racking in the “export area” of the warehouse so as to eliminate the risk of product falling onto employees.

ii. As a result of the defendant’s contraventions, Robert Ronald Keys and Liam O’Donnell were placed at risk of injury.

iii. As a result of the defendant’s contraventions, Robert Ronald Keys suffered fatal injuries.

OVERVIEW

5. At the time of the offence, the defendant was a corporate entity, with its principal place of business at 10 Williamson Road, Ingleburn in the State of New South Wales (“the premises”).

6. At the time of the offence, the defendant employed:

(a) Robert Keys (the deceased) as a storeman;

(b) Liam O’Donnell as a storeman;

(c) Robert Radford as a machine operator;

(d) Darren Horton as machinist storeman;

(e) Probhend Singh as leading hand in the warehouse area;

(f) Salesi (Charlie) Ramsay as a team leader;

(g) Colin Moore as Production Manager in the “cold end” (rod mill and warehouse);

(h) Peter Henderson as Production Manager in the “hot end” (cast house and extrusion pressers);

(i) Craig Williams as General Manager;

7. The defendant’s business was the manufacture and sale of metal products. It manufactured brass and copper products at what was called the “hot end” of the premises. It also cold packed, worked and stored brass and copper products at the warehouse end of the premises – the “cold end”.

8. The copper product and brass product was in the form of solid or hollow tubular bars, ranging from 1 metre to 6 metres in length. The diameter of the bars ranged from 2 mm or 3 mm to approximately 110 mm. Each bundle of bars weighed between 50 kilograms and 500 kilograms. For purposes of storage, individual bars were kept together in either wooden cases or were covered in plastic shrink-wrap and were steel strapped together into bundles. Some bundles held as little as two or three bars. In the case of items intended for export, a paper label was generated and attached to the end of the packing. Printed on the label were details of the contents of the package and the identity of the consignee.

9. The product was stored in the warehouse on storage racking. There were two distinct sections in which product was stored: the “export area”, which held material to be shipped overseas as well as material being accumulated for distribution to interstate warehouses, and the “stock area”, which held material as stock sizes to be sold within Australia, predominantly within NSW.

10. The storage racking was cantilever steel, free standing and was a purpose built in-house design. There was no Australian Standard for the design and use of cantilever type racking at the time of its design and at the time of the incident. In the export area, the racking was set up in a series of back-to-back rows, with two bays of racking in each row. There was an aisle between the rows which faced each other. Each bay of racking consisted of three vertical columns with rack shelf arms protruding horizontally. Vertically, the shelving was identified from shelf number 0 to a maximum shelf number 14 corresponding to height (0 being the lowest shelf and 14 being the highest shelf). For the purpose of storage, items were labelled and bar coded and placed on the storage racking in the warehouse using a side-lifting forklift truck.

11. The forklift was also used to remove the items from storage when they were picked to fill an order. To guide the forklifts whilst within the rack area and to protect the base of the racks from the forklifts, there was a steel bumper bar around the base of each rack. The Court is referred generally to the photographs annexed, taken on 14 and 19 April and on 25 May 2004.

12. In the “stock area” of the warehouse, the defendant utilised a computerised order storage and picking system. Product was stored systematically according to type.

13. “Stock” items were stored in accordance with the bar coding which designated a specific location on the racking for each item. The racks in the stock area were labelled from A to M and designated rack 1 or rack 2. Each storage rack comprised horizontal shelf arms numbered from zero (the bottom shelf) to 14 (top shelf), which indicated the shelf number the item was to be placed on. This meant that when items in the “stock” needed to be found in order to be picked, there was a computerised record telling the picker where the item was. The forklift could proceed directly to the location of the item and could pick it and take it away to fill an order.

14. The “export area” comprised racking allocated for products to be exported or to be distributed to interstate warehouses, but, by contrast with the “stock” area, there was no computerised record of where items were stored. Product destined for export was manufactured, packed and labelled for a designated customer. Both when initially stored and when moved in order for other items to be found, product in the “export” area tended to be placed wherever space on the racking could be found. However, generally, items manufactured to fill an order for the same consignee were, at least in initial storage, placed together on the same shelf.

15. There were 13 rows of racking in the export area, comprising some 312 shelves in total – 24 shelves on each rack (12 on each side) – each rack facing two bays.

16. The work duties in the warehouse included picking of stock and packing of stock.

17. Picking duties included driving a forklift truck, picking stock, loading containers, unloading and loading trucks. Persons working on picking duties worked 8-hour shifts, morning and afternoon.

18. Packing duties included driving forklift trucks, packing products into bundles or boxes, labelling product items, placing the items on racks in the warehouse and assisting the pickers. Persons working on packing duties worked a 10-hour day shift.

19. When picking the stock in the “export area”, an employee identified items to be picked by searching the storage racking to find the required items listed on an order picking sheet, and then spraying the item’s packaging with coloured spray ink to allow easy identification later of the items in the order. Searching the racking for items required the picker to read the labels affixed to the end of bundles and boxes. Where the shelves were significantly above eye level and where the labels were in the rear bay of the rack and thus obscured by the contents of the front bay of the rack (“high stored items”) labels were difficult to read or could not be read. To read the labels of high stored items and thus locate such items when required for picking, pickers thus needed to get sufficiently close to the items stored to be able to read the labels.

20. At the time of the offence, there was no picking gantry or ladder which was dedicated for use by the pickers to climb to read labels of high stored items. Accordingly, there were two ways in which pickers could get sufficiently close to the labels of high-stored items to read them. The system used by the defendant was, by using a forklift, to move each high-stored item which might be the required item down to a level which permitted its label to be read by a picker on the ground. The second way was for the person looking for the items to in some way move to a higher level than ground level in order to read the labels on those high-stored items.

21. There were two ways in which the person looking for the items could move to a higher level than ground level. One was by placing a box or some such container on the tynes of the forklift, standing on it and being raised to the required above ground level on the forklift. The other was to physically climb the racking.

22. Once located, items to be included in the same order were marked with the same colour spray ink for subsequent removal by forklift. The item would be sprayed on part of the label attached to one of the ends of the packaging. Pickers working in the “export” area often worked under time constraints since shipping containers needed to be filled in sufficient time for them to be driven to the wharf and loaded onto a vessel scheduled to depart for overseas.

THE INCIDENT

23. On 14 April 2004, Mr Ramsay and Mr O’Donnell had commenced work at 3.00 am and were performing picking duties in the warehouse. Mr Keys and Mr Radford were working in the packing area of the warehouse. Mr Keys had 13 years of service with the defendant, principally in the warehouse - other than his first 12 months of service when he worked in the rod mill at the premises.

24. On 14 April 2004, the cold end production manager, Mr Moore, and the warehouse supervisor, Mr Singh, were on annual leave. Mr Henderson, “hot end” production manager, was relieving in the role as cold end production manager. He was thus performing a dual role at the time. Mr Ramsay was performing the role of warehouse leading hand and supervisor in Mr Singh’s absence.

25. At about 2.30 pm on 14 April 2004, Mr O’Donnell was performing picking duties in the export section of the racking area. He had a “pre-delivery manifest” which required him to pick one bundle and one case to fill the order. Mr O’Donnell was searching for the articles in the export area. Mr Keys asked Mr O’Donnell what he was looking for. Mr O’Donnell advised Mr Keys of the articles he was looking for to fill the order and showed him the pre-delivery manifest. Mr Keys showed Mr O’Donnell the location of the case in the racking around the aisle between the 4th and 5th sets of racks (from the most northern end of the warehouse). He also said there was a bundle about three racks from the top of the racks and that that might be the bundle Mr O’Donnell was looking for.

26. The 5th rack comprised 11 horizontal levels of shelf arms. The 4th rack (from on the northern side) also comprised 11 horizontal levels of shelf arms (12 shelves in total).

27. Mr O’Donnell was standing at the end of the racking aisle, near the entrance to the aisle between the 4th and the 5th racks. Mr Keys was in the aisle. Mr O’Donnell suggested that as the code number on the bundle could not be read, the forklift be used to access the rack to read the number of the bundle. Mr O’Donnell placed the pre-delivery manifest and spray can down on the 3rd horizontal shelf arm (counting from the bottom level).

28. Mr O’Donnell then saw a bundle falling in the air at about Mr Keys’ shoulder height and hit Mr Keys. Mr O’Donnell did not know where the bundle came from. Mr Keys was 175cm tall. Mr Keys fell to the ground in an approximate 45-degree angle to the front bay of the racking, with his head on the side. The bundle rolled over the back of Mr Keys’ head. The bundle also hit the back of Mr O’Donnell’s right heel.

29. The bundle of bars which hit Mr Keys consisted of 3 brass bars strapped together in a triangular style, shrink-wrapped with plastic shrink-wrap coating, held together with 4 evenly spaced steel straps around the outside of the shrink-wrap plastic and a fifth spring steel strap around the middle of the pack.

30. The packaged bundle measured approximately 180mm wide at the base, approximately 165mm high, and approximately 3.6 metres in length. It weighed approximately 500 kilograms. One end of the bundle was labelled with, amongst other data, the following: “3.1/2” dia x 12” C360 3660mm Alloy 360 Calc. Bar count – 3 Free cutting brass (American) Net 1274 lbs Tare 0 lbs Gross 1274 lbs”. The label also had printed on it the name of its consignee: “Thyssen TMX L.A.”.

31. Records showed that the bundle that struck Mr Keys was packed at 10.50am on 24 March 2004. However, the defendant could not ascertain who placed the bundle on the racking system or whether it was moved prior to the incident. At the time of the incident, Mr Keys and Mr O’Donnell were the only people in that area of the warehouse.

32. Mr Keys died as a result of the injuries. The cause of death was extensive and multiple injuries, including multiple fractures of the limbs, skull, chest, pelvis and spine, as well as severe lacerations of the brain, lungs and liver.

WORKCOVER’S INVESTIGATION

33. On 14 April 2004, Inspector Cris Jelley conducted an inspection of the racking. He noted that the racking was yellow in colour and “SA QLD” was painted on the 4th racking (on the left hand side when facing the 4th and 5th racking). He noted that “sequdia” was marked in ‘texta’ pen on a number of arms of the 5th racking (on the right hand side when facing the 4th and 5th racking). Investigation showed these markings to have been placed on the racking some time before the incident in order to assist staff in identifying racks to which particular items could be placed and from which they could be picked. However, by the time of the incident, they bore no relation to the identity or location of consignees of product placed upon the shelf of the racking so marked.

34. The width between the 4th and 5th racking was approximately 2.3 metres. The distance between the steel bumper bars that surrounded the 4th and the 5th racking created an aisle of approximately 2.1 metres. This was just wide enough to permit the passage of the forklift.

35. The length of the aisle from the front to the back wall was approximately 8.5 metres.

36. At the time of the Inspector’s visit to the premises on the day of the incident, he noted that the outer or front bay of the 5th set of racking comprised the following:

(a) 3 vertical support columns connected with a cross bracing in an “X” style;

(b) the vertical support columns were attached to bottom support beams that were bolted to the floor;

(c) proceeding at the outer edge from bottom to top, 11 horizontal arms extending from the vertical supports to form 12 racking shelves;

(d) the horizontal arms extended approximately out 870 mm creating a gap of approximately 340 mm between each horizontal arm;

(e) the height from the floor to the 3rd horizontal arm was approximately 1.6 metres;

(f) the height from the floor to the 4th horizontal arm was approximately 2 metres;

(g) around the edge of the racking along the floor, a steel beam acted as a bumper rail for forklift trucks.

37. At that time various items were located on the shelves in the front bay of the 5th racking:

(a) the 1st (bottom), 2nd and 3rd shelves contained items;

(b) the 4th level shelf was empty;

(c) the 5th 6th and 7th shelves contained items;

(d) the 8th shelf was empty;

(e) the 9th level shelf contained items;

(f) the 10th shelf was empty;

(g) the 11th and 12th shelves contained items.

38. The 3rd shelf contained 3 plastic wrapped items. The back item was approximately 230 mm wide, the second approximately 130 mm wide, then there was a gap of approximately 125mm wide, the third item was at an angle to the other item and approximately 160mm wide, leaving approximately 235 mm at the edge of the 3rd shelf.

39. The 5th shelf rack contained a timber case approximately 255 mm wide, then another timber case approximately 310mm wide and a plastic wrapped bundle of 2 brass bars 180mm wide, leaving a space of approximately 130mm to the edge of the 5th arm rack. The bundle of 2 brass bars was angled – it was approximately 130mm from the edge of the left arm, 140mm from the edge of the middle arm and 137mm from the edge of the right arm.

40. There was a bundle of two brass bars that were on the 5th level at the front of the 5th racking which bore a label (see photographs 17 & 18) which showed that its consignee was the same as the consignee for the bundle of bars which fell onto Mr Keys (see photo 19) – “Thyssen TMX L.A.” Other details on the two labels also coincided – the reference number, the part number and the time and date of packing – “10:50 24 Mar 2004”. Although comprising two bars rather than the three in the bundle which fell, according to the labels, the contents of the two bundles were otherwise the same – “free Cutting Brass (American)”, “3.1/2” dia x 12’ C360”.

41. The approximate measurements of the items on the 5th shelf racking level were:

arm shelf racking horizontal width of 870mm

less:

(a) the timber case of 255mm

(b) the timber case of 310mm

(c) the bundle of 2 rods 180mm

42. When calculations are done using the above measurements, this would leave a gap of 125 mm on the 5th shelf of the front bay of the 5th rack.

43. The bundle of brass bars found on the floor next to Mr Keys was approximately 180 mm wide and 165 mm high.

44. [intentionally blank]

45. Inspector Jelley attended the premises again on 19 April 2004 and measured the distance of each arm shelf from the floor to be:

§ 1st level arm shelf 255 mm
§ 2nd level arm shelf 790 mm
§ 3rd level arm shelf 1210 mm
§ 4th level arm shelf 1620 mm.

46. An engineer from Testsafe Australia, Mr Tony Martin, conducted an investigation. He inspected the racking and made a number of measurements. He then compiled a report dated 23 June 2004 (which is included in the prosecution’s tender bundle).

47. [intentionally blank]

48. On 25 May 2004, Inspector Jelley again attended the premises and inspected the racking systems in the warehouse. He observed:

(a) a number of rack arms were split or bent;

(b) a bundle of brass bars was stored so that the bundle was not sitting flat on all three arms as the middle arm was bent upwards. The bundle was resting on the left and middle arms only;

(c) bundles and boxes were stored on top of one another on the bottom shelf of the racking;

(d) bundles of brass bars were also stored on the upper levels of the racking - higher than the 6th arm shelf rack;

(e) when a side lift forklift truck was loading items onto and unloading items from the rack the whole rack would sway slightly for approximately one minute once the load was removed.

49. Inspector Jelley’s investigation disclosed features of the “export” side of the warehouse relating to the method of storage and accessing items in the racking which directly affected or which had the potential to affect safety, specifically:

(a) There were no safe working loads marked on the racks;

(b) On occasion, items were stored close to the front edge of the rack arms, sometimes level with the front edge;

(c) On occasion, items were loaded so that they overhung the edge of the rack arm;

(d) To access an item to check identity details or to spray mark an item where it was located above the height at which employees could read label details or to which they could reach from ground level, employees used a forklift truck to retrieve the item from the racking, climbed the racking or the product, used a ladder or stood on the tines of a forklift or on a box or similar object placed on the tines for that purpose.

(e) An item had fallen from a rack previous to this incident and as a result it was determined that items would not be stored on top of each other. However, about two months later, items were found to be stored on top of one another. Incidents of items falling from the racking occurred.

(f) On 25 November 2003, items fell out of a box being removed from the racking E1 shelf arm 12 in the stock area.

(g) As noted above in par 14, items were stored in the export area, not in accordance with a system which enabled them to be stored, located and picked safely but as assessed in the circumstances by the forklift driver.

(h) Generally the racks were loaded with 3 boxes, or alternatively, 3 or 4 bundles, or alternatively a combination of boxes and bundles on each shelf. Generally only 4 items were placed on each rack on the shelf.

(i) On occasion, when picking an item forklift drivers had to move other items to access the required item.

(j) If the forklift truck tines were out of alignment the item was lifted on an angle and could be difficult to place on the racking due to the length of the product and the gap between the racking arms.

(k) On 5 March 2004, a safety audit inspection was conducted by the defendant’s General Manager, Mr Craig Williams, where items were identified as being stored close to the edge with a risk it ”could possibly be knocked off rack” (audit report form). Also, particular racking in use was identified as being damaged.

DEFENDANT’S OPERATING PROCEDURES

50. The defendant had a Warehouse & Packing System Procedure. By clause 5.1.1, System Procedure: “The rodmill superintendent shall be responsible for ensuring that all material is weighed, packed and stored correctly and that recorded details are loaded into the computer. He is also responsible for ensuring that the requirements of this procedure are carried out correctly”. Unlike the stock area the computer did not designate a location for the product.

51. The defendant had a Warehouse and Packing Safe Operating Procedure. By cl 4.1, product was required to be stored in designated areas. However, in the export side of the warehouse, product was generally stored in locations as the forklift driver saw fit within designated product storage areas.

52. Although locating product by climbing the racking was verbally prohibited by management, the defendant had no workplace instruction to that effect.

53. By cl 4.3 (Housekeeping) and cl 4.4 (Picking) of its Warehouse and Packing Safe Operating Procedure, the defendant instructed employees to ensure warehouse racks were loaded evenly so that they balanced and to ensure there were no overhanging boxes or bundles of product before entering between the racks.

Although verbal instructions were given to this effect, the defendant had no standard operating procedure requiring that no product be left in an overhanging position or that product be stored so that there would always be a portion of the front edge of each shelf arm without any material above it.

54. In the export area, the defendant had no written standard operating procedure as to the number of items to be stored per shelf or that items were not to be stored on top of each other.

55. Apart from cl 4.4 (Picking) of its Warehouse and Packing Safe Operating Procedure (see above), the defendant had no adequate system of picking so that unpicked product was not left unbalanced, on top of other product or overhanging a shelf arm.

56. From time to time employees did take shortcuts by climbing the racking or getting a lift on forklift tynes.

57. [intentionally blank]

AFTER THE INCIDENT

58. On 14 April 2004, Inspector Jelley issued an Improvement Notice No 7-53324 to the defendant requiring it, in consultation with employees, to develop, implement and maintain a safe system of work for the storage of goods in the racking system, and to ensure persons were instructed and trained in the safe system of work and adequately supervised.

59. In response, by letter dated 19 May 2004, the General Manager, Mr Williams, advised that the defendant considered that its safe operating procedure was adequate but, as directed by the Improvement Notice and because it was directed to do so, the defendant had drafted a revised safe operating procedure.

60. After the incident, WorkCover made recommendations for the method of storage and the racking at the premises. The directors of the defendant discussed these with the General Manager, Mr Williams, who implemented changes to the storage system at the premises.

61. After the incident the defendant issued a document outlining the safe operating procedure for employees working in the warehouse which included procedures for storage of products, maximum weights and boxes of product on each rack, types of product which may be stored on each rack, prohibition on double stacking and overhanging of products, prohibition of climbing on the racking and entering areas where racks were damaged.

62. The revised safe operating procedure included, as new items, the following safety procedures:

(a) under no circumstances are any personnel allowed to climb on the racking system;

(b) bundles are to be sitting 50mm back from the edge;

(c) no double stacking of bundles or cases on any racks;

63. In addition the revised safety procedures included instructions and illustrations on the method of storage on the racking in different areas of the warehouse and were prescribed for bundles shorter than 2.5 metres being stored on one designated rack due to its specialised design in the northern area of the warehouse ( the overall area where incident occurred). It also provided for single stacking only of cases or bundles in this area.

64. The defendant company has now ceased its manufacturing operations at Ingleburn, but remains in existence as a corporate entity (i.e. it has not been liquidated or been deregistered).

4 Various documents were tendered, including expert advice provided to the prosecutor in June 2004 by TestSafe Australia. Evidence was called by the prosecutor from Inspector Cris Jelley and from Anthony Martin, Manager Physical Testing Branch, TestSafe Australia. Evidence was called by the defendant from Mr David Crowe, the defendant's former general manager. None of the witnesses were required for cross examination.

5 It was common ground that given this defendant's previous record, the maximum penalty for the offence was $825,000.

The case advanced for the prosecutor

6 The prosecutor's case was that this was not a 'worst type of case' for which the maximum penalty ought to be imposed, despite the fact that the offence had resulted in a fatality.

7 It was submitted that the risk in question was that of product falling onto employees working in the export side of the defendant's warehouse. That was a fairly obvious risk, which, on the evidence, had been identified by the defendant, which had devised a 'system' to alleviate the risk. Despite the system, the risk had manifested itself on earlier occasions, when items had fallen from the racks on which they were stored in the warehouse. It followed that the offence was a serious one, given that little was done by the defendant to eliminate that known risk. There were also significant factors present which, in fact, enhanced the risk. These included that some shelf arms of the racks in this part of the warehouse sloped downwards; there were no end stops, or other devices, which would stop items slipping off the racks and that some shelf arms were broken or bent, so that items could not rest on all the arms of a shelf. That heavy items were stored at height, on some occasions on top of one another, also exacerbated the risks.

8 It was also submitted that another significant feature of the rack system was that the racks swayed slightly when forklifts inserted and removed items stored on the racks. This motion lasted for about a minute, once a load was moved. It was inconceivable that the defendant was unaware of this, but if unaware, the system must have been truly defective. This tendency also ought to have alerted the defendant to the risk of items falling from the racks.

9 It was also relevant that the defendant's written safety procedures were inadequate. The defendant's evidence suggested the existence of a sophisticated, organisation wide safety, health and environment system, but it was relevant that no evidence had been led as to the practices operating in the warehouse.

10 It was argued that the evidence also showed the simple and obvious remedial measures available to the defendant, which would have eliminated the risk of items falling from the racks in question. After the incident the prosecutor issued improvement notices which resulted in the implementation of steps which addressed this risk, but, it was submitted, that it would be noted that those steps were implemented only reluctantly by the defendant. The TestSafe Australia report also identified ways in which the risks in question could have been addressed.

11 The consequences of the manifestation of the risk were also submitted to be relevant in determining penalty. One employee was injured and another killed. The potential consequences of the risk were even greater. Anyone working in, or near the racking, was exposed to this risk. It followed that the offence was an egregious one and that the defendant's criminality was high. This made the provisions of ss 21A(2) of the Crimes (Sentencing Procedure) Act 1999 relevant to consider.

12 It was also submitted that Mr Keys' death demonstrated the seriousness of the offence, a factor sounding in aggravation of penalty.

13 It was also argued that both general and specific deterrence were factors to be considered in determining penalty. That the defendant had ceased to trade was accepted as being relevant, but it was submitted that specific deterrence still had a role to play. On the evidence, the Court could not conclude that the defendant would not employ anyone in future and that it would not conduct other business. That the defendant was a recidivist which had accumulated three offences in less than three years, was also submitted to be a relevant factor to be weighed.

14 As to the utilitarian value of the plea, it was initially submitted in written submissions that:

70. The defendant entered a plea of guilty on 6 September 2007. While this could not be considered an early plea (the charge having been filed in April 2006) there is utilitarian value to the Court and the prosecutor by virtue of the defendant entering a plea some time prior to the hearing commencing. The defendant is entitled to some discount on penalty for its plea (s 22 Crimes (Sentencing Procedure) Act).

71. It is necessary to point out that it would be wrong to suggest that the defendant entered its plea because the Amended Application for Order was filed also on 6 September 2007. In any event, the amendment modified the particulars, not the charge. Pleas are entered to charges, not to particulars. Were the particulars an issue for the defendant, it was always open to it (from April 2006) to enter a guilty plea and to contest the particulars. Merely because the particulars to the charge were amended does not mean that the defendant could characterise its plea as an early one entitling it to the full 25% discount on penalty due to a plea entered at the earliest opportunity (R v Thompson & Houlton (2000) 49 NSWLR 383). In any event the particulars in the present form substantially reflect the original particulars – the mere number of particulars does not alter a charge.

15 In oral submissions it was accepted, however, that the plea was entered after the prosecutor had amended the charge. This followed correspondence from the defendant which indicated:

"As to the negotiations of the particulars, given the breath of the particulars ... we are instructed that Conex cannot admit either of those sets of particulars. However, we are instructed that Conex will plead guilty to the following set of particulars".

16 The prosecutor replied:

"we accept that in these circumstances the charge to which the company be entering a plea of guilty would be particularised in the terms set out in your submission, namely" ...

17 As to subjective factors, it was argued that they were relevant, but secondary considerations in fixing penalty. Here the view which would be taken was that despite the death of one of its employees, the defendant's attitude was that its procedures were adequate and would only be changed because it was required to do so by the prosecutor. Despite what was put in Mr Crowe's affidavit, there had been but little remorse shown by the defendant. There had been little interest in uncovering the real cause of the accident, in order to ensure that there was no repetition. While the defendant might be sorry that a fatal accident had occurred, there was nothing to indicate rehabilitation.

The case for the defendant

18 For the defendant, it was accepted that it had entered a plea in circumstances where the offence it had committed was an objectively serious one, given that the case involved a death. It was submitted however, that 'at the end, when weighed in the nature of these cases, this court sees there is nothing in this case that takes it outside of what might be described as the normal range of occupational health and safety cases'.

19 The facts were not in contest. The inadequacy of the system was also accepted. It was argued that it was important, nevertheless, in looking at the objective seriousness of this offence, not to overlook positive factors, when taking negative ones into consideration. It was argued that in looking at culpability, account would be taken of the fact that the charge finally pressed did not relate to the whole of the defendant's operation, but only a part of it. This put the case into a less serious category, than if the failures had affected the entirety of the defendant's operation. It was also relevant that the system the defendant had in place, involved steps such as using forklifts to remove anything from height; not to enter an aisle where there was any overhanging material and not to climb the racks. It was submitted that if that system had operated, there was no suggestion that people would have been exposed to any risk. Had that system not existed at all, the offence would have been more serious. That the risk was addressed, therefore also had to be acknowledged as a positive factor.

20 It was accepted that the risk in question was obvious, but it was argued that account would also be taken of the fact that it was one which the defendant had tried to address. It followed that this was not a worst case category where a risk had been identified, but nothing at all had been done to address it.

21 As to the expert report commissioned by the prosecutor in relation to the racking, it was observed that it was confined to the carrying capacity of the racks. It was submitted to be relevant that in the course of looking at that issue, that the experts did not raise any other problems. This was relevant in assessing the defendant's criminality and culpability. The timing of that assessment was also relevant to be weighed in the balance in favour of the defendant.

22 It was also argued that the submission that the defendant had no interest in discovering the cause of the incident, would be rejected. The evidence showed that the defendant had co-operated in the prosecutor's investigations, which involved the use of experts. It could not be established that had the defendant conducted a separate investigation, anything else would have been uncovered. The prosecutor had access to the defendant's employees and systems; it issued notices in relation to documents and inspected the workplace. The defendant also sought further expert assistance in relation to the racking system's load bearing capacity, submitted to be fundamental to the investigation. Nor could it be concluded that the defendant had only reluctantly complied with notices it had received. Additionally, the evidence of Mr Crowe would be noted. Operating personnel had to consider competing issues, namely that while shelf stoppers could have been utilised at the end of the racks' horizontal components, they could also create the risk of a forklift dislodging product while removing a load. The proper inference was that the defendant was considering and working through the issues in question. It was a matter of trying to get them right. The charge was concerned with a failure to maintain a safe system, not the absence of such a system at all.

23 As to heavy loads being stacked on top of each other, it was submitted that no more could be concluded, than that this had happened. The photographs did not show such loading. It would also be accepted that while there was no written instruction not to climb on the racking, verbal instructions had been given. Again, it was submitted that in the absence of that instruction, the case would have been a more serious one.

24 As to deterrence, it was accepted that both general and specific deterrence would apply. It was argued, however, that specific deterrence would have a lesser role to play, given that the defendant no longer traded. It was also relevant that while the defendant had a record, other prosecutions did not include similar factual circumstances.

25 As to the time of entry of the plea, it was submitted that the circumstances were such that the defendant would receive the maximum discount, or something close to it. The amendment to the charge agreed was an important one in the circumstances. It was a material change, which directly led to the entry of the plea.

Consideration

26 Determination of the sentence here to be imposed must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors, as s 21A of the Crimes (Sentencing Procedure) Act requires.

27 The evidence well explains why it was that the defendant entered a plea to the amended charge and accepted the prosecutor's submission that the offence was a serious one. I am satisfied that the evidence established, to the requisite standard, that the offence charged was committed.

28 On that evidence there can be no doubt that this was a very serious offence, involving as it did, a risk of death from an employee being struck by heavy bundles of metal tubing weighing up to 500 kilograms, falling from overhead storage racks. This was not the first occasion on which this obvious risk had materialised, although thankfully on such earlier occasions no one was injured. That was plainly a matter of good luck, not good management.

29 On the evidence, despite this earlier materialisation of what was plainly an obvious and serious risk, the defendant did not take simple, remedial steps readily available to it, which would have precluded that risk materialising again. As a result, in April 2004, Mr O'Donnell was injured and most regrettably, Mr Keys died. On that evidence, there can be no question that the prosecutor's submission that other employees who were working in, or near, these racks were similarly exposed to the risk of serious injury and death which again materialised on 14 April, was made out. That this was a most serious offence cannot, in all of those circumstances, be doubted.

30 Given the evidence as to how the system here in question operated, that the defendant had not earlier taken effective steps to address this problem, is difficult to understand, particularly when consideration is given to the time, effort, energy and costs otherwise incurred by this defendant, in dealing with safety issues at its workplace.

31 The racks in question were stacked with items which had to be despatched to customers. There were two parts of the defendant's warehouse at this site. One part dealt with items destined for export. That is where this incident occurred. This part of the warehouse was not computerised. The result was that instead of packers such as Mr Keys and Mr O'Donnell, being informed where the items they had to locate were stored on the rack system, they had to manually search for items placed on those racks. Those items could be stored at such a height that the labels on the items could not be read. This necessitated heavy, awkward bundles being moved by forklift, in order that the addressee identified on the label attached to the item, could be seen. Other methods which employees were known to use to access these address labels, was by climbing onto the racks themselves, or by using forklifts to lift themselves, to a sufficient height to permit the labels to be read.

32 These methods did not accord with the instructions which the defendant had given its employees, in relation to this work. They included that employees were not to climb the racks; were not to enter aisles if there was any overhanging material and to use forklifts, to remove anything from height. Undoubtedly the existence of these instructions is a relevant factor to be taken into account. Had there been no such instructions, the offence would have been even more serious than it was. Nevertheless, the existence of instructions such as this, particularly when they were not enforced in practice, proved to be of no assistance in keeping people working in the vicinity of these racks safe. This is a matter which may also not be overlooked.

33 The inherent danger of the method which employees were required to use to find items on these racks, was the way in which the racks were configured and how items were stored on the racks. Despite the size and weight of the items stored at height on the racks, they were not secured there by any means. The racks themselves swayed, when a forklift was used to move items. On occasions some items were placed on top of each other. Additionally, on other occasions, items were also placed so that they overhung a rack. Some of the racks were damaged, so that items could not lay flat on the racks. Other racks sloped, with nothing preventing an item falling off a rack, should it start to slip. What was placed on these racks could obviously be unstable and at risk of falling onto those working in the vicinity. The consequences of items falling from a rack and striking an employee working in the vicinity, was patent. The risk was that of death. On the evidence that risk was essentially unaddressed by the defendant in April 2004, other than by ineffective and seemingly unenforced instructions. This was the case, even though items had fallen from the racks in the past. And so it was that while Mr Keys and Mr O'Donnell were looking for a particular item on the racks, that this incident occurred, with entirely foreseeable consequences of the most serious kind - an entirely preventable death.

34 The nature of the risk inherent in the system the defendant maintained was well demonstrated by the evidence as to what occurred in April 2004, when both Mr O'Donnell and Mr Keys were struck when the 500 kilogram item fell. On the evidence, it must be accepted that the consequences of what occurred that day, could have been even more serious than they, in fact, were.

35 Despite the WorkCover investigation and the advice later received from TestSafe Australia, what in fact caused the item which killed Mr Keys and injured Mr O'Donnell, to fall from the rack, was not established. It plainly could have been one of a number of factors, or a combination of a number of them. Whatever the cause, the risk of such an occurrence was undoubtedly known to the defendant, which implemented no effective measures to prevent that risk materialising as it did.

36 On the evidence, after the accident, the defendant took various steps to address the problems revealed by this incident. The WorkCover Authority required the defendant to implement others.

37 All of those steps could and should have been taken beforehand. There was no suggestion that they were steps which could not readily have been taken beforehand. That such simple remedial steps were not taken, further reveals the gravity of this offence.

38 For the defendant it was submitted that while the seriousness of the offence was acknowledged, in determining penalty account would be taken of the fact that this was not a defendant which had been aware of the risks in question, but had taken no measures at all to deal with them. I accept that submission, but as was also accepted for the defendant, the submission involved a somewhat two edged sword. This was a very serious risk, which was readily foreseeable, indeed had been foreseen and had in fact earlier materialised. On the evidence the measures which the defendant had implemented, were entirely ineffective in dealing with that risk. Even the inadequate measures the defendant had implemented, were not adhered to, in practice. It was, for example, accepted that despite a verbal instruction given to employees not to climb on the racks, employees in fact were known to do so, when searching for an item.

39 Nevertheless, I do accept that a mitigating factor relevant to take into account in fixing penalty, was the evidence of this defendant's general approach to its safety obligations. This was certainly not a defendant which paid no attention to its safety obligations. To the contrary, Mr Crowe gave extensive evidence as to the defendant implementing a Dupont Safety system in 1997, which was later augmented by the introduction of the SHEAtlas system, developed by Orica. That system was designed to identify hazards, assess risk and introduce measures to control or eliminate them. That system was operating at over 50 other corporations and the defendant engaged experts to implement and maintain that safety system, at its workplace. The system involved an extensive audit process, addressing 19 standards. The defendant's employees were trained in the operation of the system, with safety specialists engaged who worked with employees on its implementation.

40 As a result, in 2000, a hazard register was established. The register was reviewed in 2003. Other databases recording the outcomes of risk assessments were maintained by the defendant. Ongoing training was provided to employees, including 'team experts' and team leaders. Risk assessments were conducted, including in this warehouse. Most regrettably, the evidence did not suggest that the obvious risk which here materialised was identified and dealt with, as a result of this process.

41 This was so despite the fact that the defendant's audit process was also subject to ongoing refinement, in a process of continual improvement, with improvement plans developed. Safety committees were active and safety audits continued. Employees were given access to relevant safety information through a widely operating intranet, with employees trained in its use. Weekly communication and team meetings at which safety issues were discussed, took place, as well as tool box talks. General manager safety forums were also held to deal with the question of the implementation of safety systems and initiatives. Safety leadership training programmes were conducted. Induction in site safety occurred and employees were provided with written safety policies and procedures. Considerable capital expenditure was involved in these initiatives.

42 In particular, in early 2004, the defendant engaged external experts to assess the racking system here in question, in relation to its load bearing capacity. While this expert's report was being considered, this incident occurred and the defendant then engaged another expert, to provide further advice in relation to load bearing capacity questions.

43 Quite incredibly, in the face of all of this evidence as to the attention which the defendant generally paid to its safety obligations, as well as particularly in relation to the safety of the racking system here in question, the evidence revealed that the defendant still failed to identify and deal with the very evident deficiencies of the various components of this racking system and how the work required to be undertaken in and around its vicinity, was organised. This was so, even though the risk in question had earlier materialised and employees were known not to be abiding by the defendant's safety instructions.

44 The TestSafe Australia report clearly identified various of the problems with the racking system, in its June 2004 report. They included obvious damage to racking components, which had the capacity to de-stabilise loads being carried on the racks, with the result of overloading, if an arm no longer made contact with the items stored on a particular rack; the sway evident in the racks when items were moved; the absence of any retaining system to create more rigidity in the racks; the effect of such sway on the items not secured on the racks; and the downward slope of some arms, without any retainers to stop items slipping and falling.

45 In the face of that report, it is difficult to comprehend how these patent deficiencies were never properly appreciated, or dealt with by the defendant, despite the extensive safety systems which the defendant seemingly had put in place. Those systems were clearly not operating effectively, so far as this aspect of the defendant's export warehouse operation was concerned.

46 The TestSafe Australia report also pointed to rack storage systems operated elsewhere, which addressed such difficulties by simple methods such as arms sloping upwards, to prevent items slipping or rolling off the racks and shoulders or rods being placed at the end of rack arms, to provide a stop to any movement of items.

47 On the evidence, these observations and conclusions were not difficult to draw. They plainly should have been matters dealt with by the defendant, if it had paid real attention to the obvious deficiencies of this aspect of its warehouse operation. Most regrettably, on Mr Crowe's evidence, it would appear that while these deficiencies, or at least some of them, were appreciated by operating personnel, they were not attended to.

48 It has to be observed that all the time and money in the world, spent on the production and implementation of elaborate, expensive, written safety systems, in which employees from the most junior to the most senior are extensively trained, is simply wasted, if proper attention is not paid to something as fundamentally and obviously unsafe, as bundles of metal rods weighing up to 500 kilograms, stored in a warehouse at height on a rack system, when these bundles are able to slip off the racks if disturbed. This risk existed because the racks were not capable of ensuring that the heavy bundles stored on them, could not be knocked or jolted off, when they were retrieved from those racks, or were otherwise handled.

49 Such items had fallen off those racks before April 2004. Despite the defendant's elaborate and expensive safety systems, still the defendant had not effectively dealt with the problems which so obviously confronted it, given the racking system it had devised and implemented. Its safety systems plainly did not operate effectively in practice. And even when it engaged an expert to advise it in relation to the racking system, the advice it sought was directed to the load bearing capacity of the racks, rather than the propensity of heavy items being able to fall off those racks!

50 It follows, as the prosecutor submitted and the defendant accepted, that general deterrence must have a real role to play in the penalty imposed in this case. Given that the defendant has ceased operating, I accept that specific deterrence has a lesser role to play than it would have, had the defendant still been conducting its business. On the evidence, I am unable to accept that specific deterrence has no role to play and indeed, that was not the defendant's case. I have also taken note of the defendant's record.

51 I also note Mr Crowe's evidence that the defendant has been maintained in existence, in order that it could face the consequences of this offence and that for that purpose, it remained liquid and with 'a capacity to pay any fine imposed by the Court in these proceedings.' I accept that this evidence goes to the question of the defendant's contrition.

52 Otherwise as to contrition, while I take the view that in this case, the entry of the defendant's plea to the amended charge must in one sense obviously be seen as an acceptance of the inevitable, the plea still reflects an element of contrition. Nothing on the evidence suggests that the offence as finally pressed, could have been defended. I accept, nevertheless, that the plea was entered at the first opportunity, given the basis upon which the prosecutor agreed to amend the charge, namely by isolating the charge to the racking system in the export part of the defendant's warehouse. The terms of the charge emanated from the defendant and were accepted by the prosecutor. The plea was entered immediately the charge was amended, with the result that the matter, which to that point, had been listed for a 20 day hearing, resolved itself into a plea which was listed for two days at the parties' request, but was finally heard over the course of half a day. There were undoubtedly considerable utilitarian savings achieved by that approach, which in my view should be reflected in a discount of 20%. As the High Court observed in Cameron v The Queen (2002) 209 CLR 339 at 346:

Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence.

53 I also note the steps taken by the defendant after the incident. They included a complete maintenance inspection of all racking in the warehouse and the repair of any areas of damage; the re-rating of the racks in accordance with expert advice as to load capacity; the installation of signage detailing safe working load; the review of warehouse procedures and training in revised procedures; the introduction of physically marked out safety exclusion zones, to prevent pickers and forklifts being in the same area at the same time; and the implementation of a program of daily racking audit.

54 The racks were also fitted with angled ends. This was required by the prosecutor and no doubt provided the foundation for the submission that the defendant only changed its procedures because it had to; that it had shown no insight into its offending and that there was no evidence that it had been rehabilitated. These are serious submissions, which I am unable to accept in their entirety, on all of the evidence.

55 On Mr Crowe's evidence, operating personnel had earlier considered the fitting of angled ends on the racks, but had concluded that the risk of bundles being pulled off forklift tines, exceeded any benefits to be gained from such angled ends. That this decision involved a serious error of judgment, cannot be doubted on the evidence. Mr Crowe's evidence did not explore what considerations had led the defendant's operating personnel to come to that regrettable conclusion. What 'benefits' were weighed in the decision made, cannot be known. Mr Crowe was not required for cross examination, so these matters were left unexplored. Nevertheless, this evidence, as it was left standing, only served to highlight the defendant's understanding of the existence of the risk in question and its complete failure to take any step which effectively addressed it. Angled ends were not the only means available to deal with that risk. The evidence suggested that other solutions utilised elsewhere were not even considered and that the steps which the defendant had taken, to deal with the risk by verbal instruction, were not even enforced.

56 Otherwise as to contrition, Mr Crowe's evidence also dealt with the closure of the business for several days after the incident, for which staff were paid; the counselling services made available to staff and the graded return to work made available to affected employees. Mr Crowe also described the assistance made available to Mr Keys' family, which included counselling and the meeting of funeral expenses. The company erected a plaque in honour of Mr Keys at the entry to the plant. The plaque was later provided to Mr Keys' family, when the business was closed, for reasons unconnected with the circumstances of this offence. Mr Crowe's evidence concluded with:

127 From all my interactions with those concerned, I sincerely believe that the incident and the breach of the Occupational Health and Safety Act had significant impact upon the workforce, the management and the Board of Conex.

128 From all my interactions with those concerned, I sincerely believe that the management and the Board of Conex deeply regret the incident and breach of the legislation and the impact the incidence has had upon the family, friends and colleagues of Mr Keys.

57 I accept that the evidence reflected a measure of real contrition by the defendant for what had occurred. Nevertheless, I am also satisfied that the evidence reflects that prior to the accident, despite all of the efforts made by the defendant to meet its obligations under the Act, in truth, the defendant failed to ensure that its operating personnel took the necessary practical steps to ensure that those obligations were met, when it counted. An obvious, serious risk in the export part of the defendant's warehouse was recognised, but not adequately dealt with. The end result has been the realisation of the readily foreseeable, the worst outcome possible for any employee, Mr Keys' death at work. This reality was accepted by the defendant in the plea which it entered and the submissions which it made in acceptance of the seriousness of the offence which it had committed.

58 I have taken all of these matters, both aggravating and mitigating, into account in fixing penalty.

Victim impact statements

59 Victim impact statements made by Mr Keys' daughters, Ms Kristy Clements and Ms Amanda Keys were tendered without objection. They and others were present in Court when the matter was heard. The statements were received in accordance with the provisions of the Crimes (Sentencing Procedure) Act, given that the offence resulted in actual physical bodily harm.

60 These statements outlined the serious consequences of this offence and the grief which it has caused. Spigelman CJ explained in R v Mansour (1999) 29 MVR 409, when dealing with a victim impact statement which had led the trial judge to comment on the 'immeasurable grief' of the family of the deceased victim that:

It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims.

61 I have considered these statements consistently with the legislative scheme, which provides:

28 When victim impact statements may be received and considered

(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.

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

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

(4) Despite subsections (1), (2) and (3), a court:

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

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

(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.

(6) (Repealed)

29 Victim impact statements discretionary

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

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

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

62 The receipt of the statements has the result that no matter how serious the awful consequences of this offence have been, the penalty to be imposed may be no higher than it would have been, in the absence of that evidence. The receipt of the statements, nevertheless, is a proper recognition by the Court, in a public way, of the explanations which have been given by Mr Keys' daughters, of some of what has had to be endured, as the direct consequence of this awful offence, by them, their young families and friends. As the Chief Justice has explained, in this way the Court publicly acknowledges the impact which the offence has had, and the grief suffered as a result, for those most directly affected by the offence.

Penalty

63 Having weighed all of the matters relevant to the question of the penalty to be imposed, I have concluded that the appropriate penalty for this very serious offence is $200,000. In coming to that figure I have applied the discount earlier mentioned for the utilitarian savings achieved by the entry of the plea, in the circumstances earlier discussed.

Orders

64 For the reasons given, I find the defendant guilty of the charge to which the plea was entered. Consolidated Extrusions Management Pty Ltd is ordered to pay a penalty of $200,000, with a moiety to the prosecutor.

65 I also order the defendant to pay the prosecutor's costs as agreed, or in the absence of agreement, the matter may be referred to the Registrar for assessment. The parties have liberty to approach in that respect.

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LAST UPDATED: 7 December 2007