WorkCover Authority of New South Wales (Inspector Singh) v Tony Laurence Atkins [2008] NSWIRComm 9 (31 January 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
WorkCover Authority of New South Wales (Inspector Singh) v Tony Laurence Atkins [2008] NSWIRComm 9



FILE NUMBER(S):
IRC 2566

HEARING DATE(S):
31 January 2008

DATE OF JUDGMENT:
31 January 2008

PARTIES:
PROSECUTOR:
WorkCover Authority of New South Wales (Inspector Singh)

DEFENDANT:
Tony Laurence Atkins

CORAM:
Staunton J


CATCHWORDS: Occupational health and safety - plea of guilty - general principles - foreseeability - objective seriousness of the offence - general deterrence - held specific deterrence, while applicable, not of significant weight - no prior convictions - subjective features taken into consideration - defendant's financial position and health issues considered - liability of defendant for prosecutor's costs taken into account - held not persuaded discretion under s 10 of Crimes (Sentencing Procedure) Act applicable - penalty imposed - orders as to penalty, moiety and costs.

LEGAL REPRESENTATIVES
PROSECUTION:
Mr R Reitano of counsel
SOLICITORS:
DLA Phillips Fox

DEFENDANT:
Mr I Latham of counsel
SOLICITORS:
Taylor & Scott Lawyers


CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29
Environment Protection Authority v Barnes [2006] NSWCCA 246
Ferguson v Nelmac Pty Limited (1999) 92 IR 188
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25: 18 May 2005
R v Gallagher (1991) 23 NSWLR 220
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60
WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413
WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] NSWIRComm 259; [2004] 136 IR 449
WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 100 IR 64
WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New (2004) 137 IR 33

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Occupational Health and Safety Act 1983
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 31/1/2008

Matter No IRC 2566 of 2006
WorkCover Authority of New South Wales (Inspector Singh) v Tony Laurence Atkins

Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000 by virtue of the deeming provisions of s 26(1) of the Act

JUDGMENT
[2008] NSWIRComm 9

1 The defendant has entered a plea of guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000 (the Act) by virtue of the deeming provisions of s 26(1) of the Act.

2 Specifically in relation to the offence, it is said the defendant:

Failed to ensure the health, safety and welfare at work of its employees, including Victor Bradbury (injured worker), in that as he was operating a machine known as the Magic Beam Saw (saw) and was attempting to position a piece of timber to be cut in the grippers of the saw the timber sheet suddenly moved causing the injured worker to lose his balance and be thrown forward and his right hand became trapped beneath the guard of the saw holding it in place until the travelling cutting blade of the saw completed its operating cycle causing him to sustain serious injuries including the severing of his right hand through his palm.

3 The particulars of the offence are that:

[1] The company failed to ensure that plant which was provided for use by employees at work, namely the saw, was safe and without risks to health when properly used in that:

(a) one of the two limit switches fitted to the guard of the saw was not operational and did not isolate power to the travelling cutting blade of the saw;

(b) the grippers which held the timber sheets in place were not properly adjusted and did not securely hold the timber in place; and

(c) there was no emergency stop switch within reach of the operator of the saw.

[2] The company failed to ensure that systems of work of the employees were safe and without risks to health in that there was no regular system of maintenance for the saw.

[3] The company failed to provide such information, training, instruction and supervision as may be necessary to ensure the injured worker's safety whilst operating the saw.

4 At the time of the of the offence, the defendant was a director of Presidential Seating Pty Limited. The Company manufactured seating and office partitions at premises at Kingsgrove, New South Wales.

5 On 11 July 2005, the Company was placed in external administration following the filing of an application for a winding up order by a creditor of the Company. The Company is no longer trading. Prosecution proceedings were commenced against the Company in similar terms to the one currently before the Court concerning Mr Atkins. Those proceedings in Matter No IRC 2567 of 2006 were discontinued by leave on 28 May 2007 with no order as to costs.

6 The prosecution have tendered an agreed statement of facts in the following terms:

[1] At all material times Presidential Seating Pty Ltd [ACN 097 420 767] (company), was a company incorporated with its registered address at Suite 10, 8 Apollo Street, Warriewood in the state of New South Wales.

[2] At all material times the company conducted its business of the manufacture of seating and office partitions from its premises at Unit 1, 14 Garema Circuit, Kingsgrove in the state of New South Wales (premises).

[3] At all material times, the company employed Victor Bradbury (Bradbury) as a machine operator and Tim Griffiths (Griffiths) as a cabinetmaker.

[4] At all material times Tony Laurence Atkins (the defendant) was a director of the company, with day to day control over the company and was in a position to influence the conduct of the company.

Background

[5] At the premises was a machine known as the Magic Beam Saw (the saw).

[6] The saw was approximately 6200mm by 5800mm with the table of 930mm high. The saw had a fixed mesh guard bolted to and in front of the power beam. There was a safety bar attached to the power beam with two micro switches, one at each end of the bar. The safety bar covered the entire length of the power beam.

[7] The saw had a travelling cutting blade which travelled along the length of the saw when operated.

[8] The saw could be operated in either manual and automatic modes. In manual mode the operator would place sheets firmly in the grippers and once it was in position, press a button to make the saw operate and cut the timber. Pressing the button in manual mode made the saw perform a single cut. In automatic mode the operator programmed information into the computer control of the saw. Then, with the machine running, the operator would place the sheets in the grippers and when the sheets were firmly in position the operator would press a button and the saw would automatically perform a series of cuts until the cutting cycle was completed.

[9] The saw was electrically operated with a programmable control panel and the power beam was pneumatically operated.

[10] There were six board grippers at the board feeding end of the saw. The board grippers were pneumatically operated. The gripper units had fixed lower clamps and only the top clamp was moveable and was operated by a pneumatic cylinder. The grippers were intended to securely hold sheets of timber in place during the cutting process.

Incident

[11] Bradbury's usual duties included cleaning the factory area of the premises each morning. His working hours were from 6.00am to 3.30pm Monday to Friday.

[12] On 22 March 2005, Bradbury was attempting to cut sheets of particle board which measured approximately 1800mm by 1800mm and were 25mm thick using the saw. As it was a repetitive task he was using the saw in automatic mode.

[13] During the morning Bradbury was having difficulty cutting some of the particle boards. At approximately 9.30am Bradbury was having difficulty cutting a sheet of particle board as the grippers were not securely holding the sheets. The grippers were 'de-clamping' which meant that the timber sheets had to be reset.

[14] As Bradbury was attempting for the third time to set the sheet in the grippers and was pushing on the edge of the sheet the sheet came free from the grippers and threw Bradbury forward causing him to lose his balance. He thrust his right hand forward. He placed his hand on the bench top of the saw directly in line with the cutting blade of the saw. As he was regaining his balance and whilst his hand was still on the bench top of the saw the guard came down and clamped his hand in place.

[15] Bradbury tried to remove his hand from the benchtop but was not able to do so. He tried to reach the emergency stop button but it was too far away for him to reach. The cutting blade of the saw then started and began moving towards his hand. Bradbury called out "Its got me" and the cutting blade of the saw continued forward and severed Bradbury's right hand across the palm.

[16] Once the saw completed its cutting cycle the guard automatically raised releasing Bradbury's hand.

[17] After freeing himself, Bradbury retrieved his severed hand and wrapped it until the ambulance arrived to transport him to hospital. Bradbury asked for a tourniquet and asked the defendant and Tim Griffiths to place his hand in ice and waited for paramedics to arrive. Bradbury remained conscious throughout the incident.

[18] Bradbury was taken to hospital by ambulance. Bradbury underwent surgery which was partially successful. The majority of the hand was re-attached however his thumb required amputation.

[19] As a result of the incident Bradbury will not be able to return to his pre-injury duties.

[20] At the time of the incident the defendant was present in the factory area of the premises and was standing approximately two and a half metres away from Bradbury. He saw Bradbury having difficulty setting the sheets in place.

[21] The defendant saw that Bradbury was having difficulty with the saw. The defendant saw Bradbury swearing and cursing. He then heard a loud "clunk" and heard Bradbury say "it's got me this time". He then turned around to see Bradbury's hand severed.

Investigation

[22] The investigation by Inspector Singh revealed that one of two limit switches which were designed to prevent the saw from operating in the event of an obstruction underneath the guard was faulty and not operating at all. In addition the grippers were positioned below the level of the bench so that it was not possible for them to properly grip the boards as they were being cut.

[23] The defendant did not conduct any regular maintenance or inspections of the saw and relied on the previous owner of the saw and the technician who re-commissioned the saw at the time he acquired the business in December 2003 to satisfy himself that the saw was safe.

[24] Bradbury was not provided with any training in relation to the use of the saw and was self taught. Bradbury was given no information in relation to the operation of the saw. No assessment was made of Bradbury's competence to operate the saw. Bradbury was not supervised when operating the saw.

[25] Bradbury was not aware if the safety features of the saw were operational at the time of the incident.

[26] Bradbury had previously experienced difficulty with operating the saw when the limit switches had cut power to the saw and required resetting. On those occasions the arm of the saw was found to be out of level.

[27] Bradbury had never performed a safety check on the limit switch or been shown how to undertake such a check.

[28] The company's system for checking the safety of the machine relied solely upon Bradbury to notify any problems with the saw.

[29] At no time whilst the saw was at the premises was it subject to regular or planned maintenance. There were at least six unscheduled maintenance visits between 22 June 2004 and 5 July 2005. The company had a documented operating manual for the saw. The company relied on operators of machinery at the premises, including the saw, to conduct daily inspections of machinery. The inspections were not documented.

[30] The company did not have a documented Occupational Health and Safety system.

[31] On occasions when the saw would not operate and Bradbury was not able to make it operational he would call a technician from JR Machinery Services to repair the saw. The cost of any repairs carried out by JR Machinery Services would be paid by the company.

[32] Repairs were carried out on the saw by JR Machinery Services on six different occasions between 22 June 2004 and 5 July 2005.

[33] On 11 July 2005 the company was placed in external administration following the filing of an application for a winding up order.

[34] At 10.30am on 22 March 2005 Inspector Singh conducted an inspection of the premises.

[35] On arrival at the premises the Inspector was met by Constables Wheeler and Fitzgerald of NSW Police and the defendant. During the investigation the Inspector was accompanied by the defendant. The Inspector made, inter alia, the following observations during the inspection:

[35.1] There was only one beam saw in the workshop.

[35.2] There was a large nameplate on the left hand side of the saw which read "Magic" in white lettering on a red backing plate.

[35.3] The saw occupied floor space of approximately 6200mm by 5800mm and had a bench top height of 930mm.

[35.4] There was a laminated chipboard sheet which measured 1800mm by 1820mm by 25mm thick on the in feed edge of the saw. There was no mark on the sheet indicating it had been cut previously.

[35.5] There was a fixed mesh guard which was bolted to and in front of the power beam of the saw.

[35.6] There was a safety bar attached to the power beam with tow micro switches, one at each end of the bar. The safety bar was along the entire length of the power beam.

[35.7] The micro switch on the left side of the safety bar, close to the control panel, appeared to be bent and damaged.

[35.8] The saw was electrically driven. There was a programmable control panel and the power beam was pneumatically operated.

[35.9] There were six (6) board grippers at the board feeding end of the saw. It appeared that only three (3) board grippers were used. The board grippers were pneumatically operated. The gripper units had fixed lower clamp and only the top clamp was moveable by pneumatic cylinder.

[35.10] The Inspector was informed that the saw had not been touched or operated since the incident that morning.

[35.11] At the Inspector's request the saw operation was demonstrated by a person who identified himself as Brian Blacklock.

[35.12] Prior to operating the unit the Inspector was informed that the saw was set in automatic mode.

[35.13] The control was reset to manual for the demonstration and two pieces of the 25mm board were cut. Following completion of the inspection the Inspector issued Prohibition Notice 138630.

[36] At approximately 10.00am on 23 March 2005 the Inspector returned to the premises in company with WorkCover Inspector Mark Cardone. On arrival both Inspectors were met by the Defendant and Mr Jeffrey Russell, a Technician employed by JR Machinery Services. During the investigation the Inspectors were accompanied by the defendant and Mr Russell. During the investigation the Inspector made, inter alia, the following observation:

[36.1] The mesh guard along the front of the saw was unbolted to allow close examination of the micro/limit switch (switch).

[36.2] Close inspection of the switch revealed that the switch on the left side from the operator's position was bent and damaged.

[36.3] The switch on the right side appeared satisfactory.

[36.4] The saw was set to manual mode.

[36.5] During the demonstration whenever the emergency stop switch was pressed there was a complete shutdown of the machine. The emergency stop switch had to be reset after each test.

[36.6] The right side switch was working satisfactorily when tested by lifting the safety bar on numerous tests.

[36.7] The left side switch did not function at all when tested during operation of the saw. The test was repeated several times and the switch failed to function on each occasion.

[36.8] The technician dismantled the left side switch and inspection revealed evidence of an earlier repair as there was tape, sealing compound and a broken bracket found inside the housing unit.

[36.9] During the testing of the saw the Inspector noticed that the grippers were not functioning effectively. The grippers would come off the board during the pulling process. The grippers would be engaged as the pulling commenced. The grippers would disengage where the 25mm sheets were used.

Actions following the incident

[37] The company implemented the following measures:

[37.1] Replaced the faulty limit switch on the saw;

[37.2] Implemented a program of preventative maintenance;

[37.3] Trained the new operator of the saw in the use of the saw; and

[37.4] Daily safety checks are conducted on the saw and recorded in a register.

[38] The defendant cooperated with the WorkCover Authority during the investigation.

[39] The defendant has no prior convictions.

7 In addition to the agreed facts, the prosecution have tendered without objection:

· eighteen colour photographs taken by Inspector Singh on 22 and 23 March 2005;

· two factual inspection reports prepared by Inspector Singh, both dated 30 August 2005;

8 On behalf of the defendant, an affidavit sworn 24 January 2008 together with annexures was tendered without objection.

9 Mr Atkins was required for cross examination.

Relevant principles

10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29 at [81].

14 On the issue of foreseeability, the Full Bench in Capral stated at [82]:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at [73]-[77]. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]- [43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

18 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that 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, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

19 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

20 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

Relevant considerations

21 The defendant has no prior convictions. Accordingly, the maximum penalty that may be imposed is $55,000.

22 In general terms, the incident giving rise to the offence arose from a malfunction of a Magic Beam Saw (the saw) being operated by Mr Bradbury, who was at the time employed by the company Presidential Seating Pty Limited as a cabinet maker.

23 As the agreed facts disclose, the accident involving Mr Bradbury occurred when he was using the saw in automatic mode to cut particle board. In doing so, he momentarily lost his balance when one of the sheets of particle board came free from the 'grippers' holding the board in place while being cut. In so doing, Mr Bradbury right hand was held down by the saw guard and it came into contact with the cutting blade of the saw. His right hand was severed across the palm.

24 The subsequent WorkCover investigation revealed:

[22] ...that one of two limit switches which were designed to prevent the saw from operating in the event of an obstruction underneath the guard was faulty and not operating at all. In addition the grippers were positioned below the level of the bench so that it was not possible for them to properly grip the boards as they were being cut.

25 The Full Bench in Capral said at [94] that 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant.

26 Further, as was stated in Capral at [82], the presence of a reasonably foreseeable risk of injury 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'.

27 On any view, given the significant and serious shortcomings in the defendant's system of work in the operation of the saw, evidenced in the particulars of breach, the risk of injury to Mr Bradbury was clearly foreseeable.

28 The fundamental safety breaches in the operation of the saw were, on any objective consideration, an accident waiting to happen.

29 The risks to safety were clearly identified in the agreed facts. That is:

· The defendant did not conduct any regular maintenance or inspections of the saw;

· Mr Bradbury was not provided with any training in relation to the use of the saw;

· Mr Bradbury was given no information in relation to the operation of the saw;

· No assessment was made of Mr Bradbury's competence to operate the saw;

· Mr Bradbury was not supervised when operating the saw;

· Mr Bradbury was not aware if the safety features of the saw were operational at the time of the incident;

· Mr Bradbury had previously experienced difficulty with operating the saw when the limit switches had cut power to the saw and required resetting;

· Mr Bradbury had never performed a safety check on the limit switch or been shown how to undertake such a check;

· The company's system for checking the safety of the machine relied solely upon Mr Bradbury to notify any problems with the saw;

· At no time whilst the saw was at the premises was it subject to regular or planned maintenance;

· The company did not have a documented Occupational Health and Safety system.

30 Given all of the above, this was a breach where there was 'every prospect of serious consequences'. That is a factor directly relevant in assessing the gravity of the offence.

31 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

32 Following Mr Bradbury's accident, the Company implemented the following safety measures:

(i) replaced the faulty limit switch on the saw;

(ii) implemented a program of preventative maintenance;

(iii) trained the new operator of the saw in the use of the saw; and

(iv) daily safety checks are conducted on the saw and recorded in a register.

33 While such measures were timely and appropriate, they were matters that could, and should, have been easily implemented well before Mr Bradbury's accident.

34 Taking into account all of the above, I consider the offence to be objectively serious and will approach penalty on that basis.

35 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that:

We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

36 In respect of specific deterrence, the Full Bench held in Capral at 644-645:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

37 In this matter, general deterrence is a relevant consideration. In relation to specific deterrence, counsel for the defendant has submitted it is not a relevant consideration. I do not agree. The Company is no longer operating and I accept the likelihood of Mr Atkins becoming an employer again is not great given his health and financial circumstances. Nevertheless, as he stated:

[12] ... For 2 ½ years my confidence and sense of self worth have been shattered by this accident and I am certain that I will never own or run a business again. I would like to hope that I can start employment again in an area suitable to my background, such as a furniture company. However, given my age and continuing medical symptoms, this is extremely uncertain. (emphasis added)

38 In all the circumstances, while specific deterrence is applicable, it is not, in my view, of significant weight in my considerations.

39 In exercising my sentencing discretion, the defendant has raised two issues of considerable weight relevant to my ultimate determination. One is the defendant's health and the other his financial position.

40 The defendant is 58 years old and presently resides with his mother. He has been married twice and has three children, one from his first marriage and two from his second.

41 In relation to the accident involving Mr Bradbury and the effect on his health, Mr Atkins deposed:

[3] ... The accident was very distressing and traumatic for me and I felt deeply sorry for what had occurred to Mr Bradbury. ...

[4] I had previously had an episode of depression requiring treatment in approximately 2002. After the accident involving Mr Bradbury my symptoms of depression and suicidal thoughts returned and I sought medical help. My general practitioner referred me to a psychiatrist for further treatment and he prescribed medication to assist. I also developed at this time symptoms of alcoholism due to my anxiety, depression and stress over my circumstances following the accident. In May 2006 I was referred to a new psychiatrist, Dr Kenneth Henson, and had been attending him periodically. Dr Henson has also prescribed medication to assist my illness, which he has diagnosed as major depressive episode (moderate/severe with suicidal ruminations and reduced capability). ...

[5] After the accident the business that until then had been operating successfully effectively came to a halt. We were not able to fill orders and in any event I was not able to focus on the business as my illness and depression developed. ...

42 In support of the above, a report from Dr Henson dated 17 September 2007 confirms Mr Atkins' depressive illness relevantly as follows:

He has a past history of depression and his last previous episode needed treatment five years ago.

He has been ill with depression again in the last two years. In recent months he has become less able to cope as the depressive illness has worsened and he has recurring suicidal thoughts and intentions. He has become socially withdrawn and he does not have contact with people or answer the phone. He has not had the energy or motivation to undertake tasks.

He recently met with his Solicitor. He is not coping with understanding his legal matters and has become incapable of completing the work needed by his Solicitor to assist him.

43 Mr Atkins is currently undertaking drug and alcohol rehabilitation and is continuing to see Dr Henson.

44 In relation to defendant's financial position, s 6 of the Fines Act 1996 provides:

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

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

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.
45 Mr Atkins has only recently recommenced work. He does part-time pizza delivery three times a week, earning approximately $150 per week.

46 In his affidavit, Mr Atkins deposed that, following the accident involving Mr Bradbury, he lost all interest in the business and sold it in July 2005. The sale price consisted of the purchasing company taking over existing staff entitlements as well as the existing creditors of the business. Apart from a six week change over period at that time, Mr Atkins said he has not worked since approximately mid 2005 until he started his part-time pizza delivery work a few months ago.

47 During that time, he stated that his financial position, if anything, only became more parlous. As he described:

[7] Since I ceased any work in approximately July 2005 I have only been able to survive financially through over-use of the credit card limits that I had prior to the accident and upon insurance company payments. I had three life insurance policies covering illness and accident which, given my total inability to work through illness, were able to be claimed upon. I was paid a lump sum of approximately $20,000.00 by the AMP and have also received $672.00 per month from Metlife Insurance and $1,000.00 per month from underwriters to my Amex card insurance cover.

48 Over the past two and a half years since the accident, Mr Atkins stated he found it necessary in 2007 to dispose of whatever personal assets he had in order to discharge ongoing debts and to assist with his legal costs in these proceedings. Those assets, primarily, were a car and a property at Capertee. He described his current position thus:

[10] Since obtaining the settlement capital sum of $157,433.00 from the sale of my Capertee property, I am working on payment of the considerable debts I have built up since the accident and closing of my business. I have listed below those debts in a table and their status:

Creditor	Amount	Status
Commonwealth Bank	$ 11,435.24	Part paid
Aussie Home Loans (Baycorp)	10,475.27	Part paid
Citibank	24,924.96	Part paid
Westpac Bank	13,541.03	Part paid
St George (Credit Corp)	15,140.82	Part paid
ANZ Bank	5,279.64	Part paid
National Australia Bank	4,021.29	Part paid
AMEX	12,348.23	Part paid
Instyle	6,940.90 (+ interest)	Being paid as per Court certified Agreement
M. Atkins (ex-wife)	8,500.00	Child maintenance paid
I. Atkins (mother)	16,500.00	Loan repaid
L.K Gray (motor vehicle repairs)	754.00	Paid
L. Smith (motor vehicle repairs)	3,100.00	Paid
Chatswood Tyres	550.00	Paid
JNP Body Works (gas conversion)	3,300.00	Paid

49 In his oral evidence, Mr Atkins advised that he has only very recently paid additional amounts in relation to some of the above creditors as follows:

Commonwealth Bank	$3000 paid
Aussie Home Loans (Baycorp)	$3000 paid
Citibank	Full amount repaid
Westpac Bank	Full amount repaid
St George (Credit Corp)	$3000 paid
ANZ Bank	Full amount repaid
National Australia Bank	Full amount repaid
AMEX	Full amount repaid

50 On his behalf, it was submitted Mr Atkins has some $40,000 in cash and owns a car worth some $3000 with weekly costs of $800.

51 In addition to the above, the defendant will have to bear the prosecutor's assessed legal costs of these proceedings as well as his own. They have been approximately estimated as $24,000. That is a factor I am entitled to take into account in determining penalty: See Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88].
52 Counsel for the prosecutor took issue with the paucity of what he said was relevant primary financial documents to support the defendant's claim of limited financial means. Crucially, there were no current tax returns or bank statements provided. Because of his illness, Mr Atkins said he had not filed a tax return for two years.

53 In relation to a defendant's ability to pay, the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New (2004) 137 IR 33 said:

... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

54 I accept that the provision of tax returns and/or accountant's report together with current bank statements would have shown a more complete overview of the defendant's financial circumstances. In all the circumstances, however, I consider his financial position to be modest.

55 In my view, the proper approach is as enunciated Obing where the Full Bench cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed:

... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

56 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration.

57 Mr Atkins entered his plea only after some months of vacillation on his part when he was not legally represented. I accept it was a delay, in part, attributable to his depressive illness. In the circumstances, I consider he entered his plea at the first reasonable opportunity after he obtained legal advice and is entitled to some discount on that basis.

58 By way of additional subjective features to be taken into account in favour of Mr Atkins, the prosecutor has acknowledged Mr Atkins' full cooperation with WorkCover. As well, Mr Atkins has accepted responsibility for the circumstances of Mr Bradbury's accident and is, in my view, deeply contrite.

59 Counsel for the defendant submitted that the circumstances of the offence were such that I should apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999, in the first instance in accordance with s 10(1)(a) (discharging the defendant without conviction and penalty) or, in the alternative, s 10(1)(b) (discharging the defendant conditionally on a good behaviour bond).

60 Section 10 of that Act relevantly provides:

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed;

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years;

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

.....................

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition;

(b) the trivial nature of the offence;

(c) the extenuating circumstances in which the offence was committed;

(d) any other matter that the court thinks proper to consider.

61 The application of the provisions of s10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 100 IR 64 and more recently WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] NSWIRComm 259; [2004] 136 IR 449. In particular, I note reference within Profab to the comments of Wright J President in WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s 556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated:

In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here).

62 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited [2000] NSWIRComm 142; (2000) 100 IR 64 the Full Bench of the Court said at [21]:

The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested.

63 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows:

[24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.'

[25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478:

The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340.

[26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission.

64 In WorkCover v Menzies Property Services the Full Bench reaffirmed the approach enunciated in Profab in the following terms:

[45] There is abundant, clear authority for the proposition that s10 of the Crimes (Sentencing Procedure) Act, like its predecessor s556A of the Crimes Act, will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act (see, for instance, Riley v Australian Grader Hire and McCarthy v Sell & Parker.)

...................

[47] We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire, as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter.

65 In considering the facts and circumstances of this matter directly involving the acts and omissions of Mr Atkins and my assessment as to the objective seriousness of the offence, I am not persuaded that the provisions of s 10 are applicable in this case. The failures of the defendant's company must ultimately be laid at the feet of Mr Atkins, particularly given his direct proximity to the circumstances of the accident involving Mr Bradbury as evidenced in para [20] of the agreed facts. While I do not doubt for one moment that he is of good character and that the events surrounding the accident would have had a profound and stressful impact on him and therefore the business, they are matters that sound more in mitigation rather than, in this case, the application of s 10. In short, the defendant's actions in relation to the offence are not such as to bring him into the range of 'exceptional circumstances' such as to attract the operation of s 10.

66 Taking into account all the matters referred to, I determine a penalty in this matter of $9500.

67 I make the following orders:

(i) The defendant is convicted of the offence charged;

(ii) I impose a penalty of $9500;

(iii) I allocate a moiety on penalty to the prosecutor in the usual terms;

(iv) The defendant is to pay the costs of the prosecutor as agreed or assessed.

LAST UPDATED:
31 January 2008