INSPECTOR ROBERT WILKIE v YSF PTY LIMITED & ANOR [2009] NSWIRComm 7 (9 February 2009)

Last Updated: 11 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
INSPECTOR ROBERT WILKIE v YSF PTY LIMITED & ANOR [2009] NSWIRComm 7



FILE NUMBER(S):
IRC 968 & 969

HEARING DATE(S):
15 December 2008

DATE OF JUDGMENT:
9 February 2009

PARTIES:
PROSECUTOR:
Inspector Robert Wilkie

DEFENDANTS:
YSF Pty Limited
Allan Murphy

CORAM:
Staff J


CATCHWORDS: Occupational health and safety - flour and grain milling industry - employee's right hand caught between two rollers in mill machine - serious crush injuries - right hand amputated due to injuries - sentencing considerations - aggravating factors - mitigating factors - previous convictions - remorse - objective and subjective considerations - guilty plea - penalties imposed - costs.


LEGAL REPRESENTATIVES
PROSECUTION:
Mr D O'Neil of counsel
SOLICITORS:
WorkCover Authority of NSW

DEFENDANTS:
Mr R Crow of counsel
SOLICITORS:
Workplace Law


CASES CITED:
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337
Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465
Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Factories, Shops and Industries Act 1962
Occupational Health & Safety Act 1983
Occupational Health & Safety Act 2000


TEXTS CITED:




JUDGMENT:

- 19 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: STAFF J

9 February 2009

Matter No IRC 968 of 2008

INSPECTOR ROBERT WILKIE v YSF PTY LTD

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



Matter No IRC 969 of 2008

INSPECTOR ROBERT WILKIE v ALLAN MURPHY

Prosecution under s 8(1) and s 26(1) of the Occupational Health & Safety Act 2000

JUDGMENT

[2009] NSWIRComm 7

1 YSF Pty Ltd, trading as Young Stock Feed ("YSF") is a company in the business of producing and selling stock feed by milling grain at a flour and grain Mill located at 133-135 Lovell Street, Young, New South Wales.

2 On 26 June 2006, Michael Jenkins, an employee of YSF was injured when his right hand was caught between two rollers in a roller mill machine at the Mill. Mr Jenkins suffered serious crush injuries to his right hand which was amputated due to his injuries.

3 YSF and Allan Murphy, a director of YSF were charged under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). Mr Murphy's charge arose pursuant to s 26(1) of the Act. These sections relevantly provide:

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

...

26 Offences by corporations—liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

4 The offence with which YSF was charged was that on 26 June 2006, at 133 - 135 Lovell Street, Young, it failed to ensure that employees, in particular, Michael Jenkins, were not exposed to risks to their health and safety. The particulars of the charge were:

a) The defendant failed to adequately guard plant, in particular a Simon Roller Mill, used by its employees so as to prevent contact by those persons with the dangerous parts of the plant;
b) The defendant failed to ensure that there was a system of work in place for the use of the Simon Roller Mill that was safe and without risks to health;
c) The defendant failed to provide emergency stopping facilities for the Simon Roller Mill that could be accessed readily and conveniently by employees working on the plant;
d) the defendant failed to provide adequate training, instruction and information to its employees working on or with the Simon Roller Mill;
e) The defendant failed to provide adequate training, instruction and information to its employees in relation to start up procedures for the Simon Roller Mill.

5 The particulars of the offence with which Mr Murphy was charged are identical to the particulars of the YSF offence, except that Mr Murphy is the defendant by virtue of his directorship of YSF and pursuant to s 26(1) of the Act.

6 Each defendant pleaded guilty.

Evidence

7 Mr D O'Neil of counsel, who appeared for the prosecutor tended the following evidence in the sentencing proceedings.

(i) a statement of agreed facts in respect of the prosecutions against YSF and Mr Murphy;
(ii) 15 colour photographs taken by Inspector Wilkie on 5 July 2006 which show:
· the Simon Roller Mill and Drive Belt Box;
· roller mill showing mesh guard and lip guard;
· yellow emergency stop button;
· belt drive and belts of the roller mill;
(iii) 5 colour photographs taken on 27 June 2006 of the Simon Roller Mill;
(iv) Factual Inspection Report of Inspector Robert Wilkie dated 25 June 2006;
(v) YSFeeds Internal Audit of the roller mill conducted by N Hall dated 27 July 2006;
(vi) WorkCover Certificate of Prior Convictions showing in respect of the corporate defendant convictions pursuant to s 15(1) and s 16(1) of the Occupational Health & Safety Act 1983 on 3 August 1999 and 2 convictions under s 8(1) of the Occupational Health & Safety Act 2000 on 15 August 2007. The personal defendant was also convicted of 2 offences under s 8(1) of the Act on 16 August 2007.

8 The agreed statement of facts for YSF and Mr Murphy, excluding formal parts, stated:

...
4. YSF owns a Simon Roller Mill (“the roller mill”) which is located at the western end of the YSF premises in the area of the mill known as the “horse plant”. The roller mill has an identification number 51720 upon it below the manufacturer’s badge. The primary function of the roller mill is the flaking and rolling of grains. Grain enters the roller mill from a chute above, passes over a spreader bar which controls the feed flow rate, and through rollers. There are two identical sets of rollers in the roller mill. Each set comprises a pair of fluted or grooved feed rollers approximately 100mm in diameter which disperse the feed across the surfaces of a pair of fluted main rollers located beneath them. The main rollers are approximately 250mm in diameter. There are two doors on each side of the machine (an upper hatch door and lower door) which give access to each set of rollers. Prior to 26 June 2006 the lower doors had latches which kept them securely closed, but they were not securely locked. At that time, the doors did not have interlocks attached. Interlocks would stop the operation of the machine if they were opened, thereby causing the accessible rollers to cease rotating.
5. In August 2005 Mr Michael Jenkins commenced employment with YSF as the supervisor of its horse plant. Mr Jenkins was himself supervised by Mr Stephen Morrison, mill manager.
6. On 26 June 2006 Mr Jenkins commenced work at the premises prior to 8am. At the start of his working day Mr Jenkins proceeded to set up the plant to kibble corn. He opened the chutes, blow line gates, slide line gates and seed cleaner, and changed the sieves over. After doing this he turned on the computer which in turn switched on the required machinery. The main rollers started, but not the feeder rollers. He then moved a clutch lever or handle to engage the feeder rollers but they would not operate. He then cleaned the feeder area of any dust and build up of grain with a blow hose. The feed rollers still would not operate.
7. Mr Morrison then arrived at the section of the premises in which Mr Jenkins was working and asked Mr Jenkins what was happening. Mr Jenkins and Mr Morrison then moved the clutch lever backwards and forwards to try and get the feed rollers working. After doing this several times they removed the cover to the drive belts and pulleys. The feed roller drive belt was slipping. Mr Morrison applied pressure to the belt, using a mallet, while Mr Jenkins continued to move the clutch lever to help engage the rollers. Mr Jenkins attempted to feel whether anything like a nut or bolt may be catching the rollers. He had one hand on the spreader bar and with the other hand was feeling around for anything that could be blocking the feed rollers. The hatch door that allowed access to the rollers was being held open either by Mr Jenkins or propped with a broom. The feed rollers started turning and Mr Jenkins went to pull his hands clear. His left hand came clear but his right hand was pulled down into the fast driving bottom main rollers. Mr Morrison was still pressing on the feed roller drive belt with a mallet and did not see Mr Jenkins right hand get caught.
8. Mr Jenkins yelled out for assistance and Mr Morrison pushed the emergency stop button for the machine located on the front of an electrical cabinet about a metre to a metre and half away and stopped the machine. Mr Morrison tried to reverse the rollers on his own and then called over another employee, Mr Mick Arabin, to help him. Mr Morrison and Mr Arabin both rotated the drive pulley which reversed the rollers. Mr Jenkins hand was released. His hand had been severely crushed.
9. Mr Craig Cottrell, an employee at the premises was heading towards the vicinity of the incident when he heard Mr Jenkins yelling and observed Mr Morrison hit the emergency stop button. He ran to the office to get assistance. A tourniquet was applied to Mr Jenkins’ right arm and he was taken to Young District Hospital by car. He was later transferred to Sydney Hospital and his right hand was amputated due to his injuries.
10. Mr Jenkins had been involved in a prior incident involving the roller mill in or about January or February 2006. On this occasion Mr Jenkins finger got caught in a roller but he was able to pull his hand free prior to any injury being sustained. Mr Jenkins says he raised the incident with Mr Morrison. Mr Jenkins says that Mr Morrison told Mr Jenkins that they needed to get a guard or mesh for the machine. Mr Morrison does not recall Mr Jenkins reporting this incident to him.
11. Prior to the incident on 26 June 2006 there was no adequate guarding, fencing or interlocks on the roller mill which would prevent access to the rollers of the machine whilst it was in operation.
12. Prior to the incident on 26 June 2006 the controls for the roller mill were located in an electrical cabinet opposite to the roller mill next to the stairs. An emergency stop button was located on the front of the cabinet which shuts down the whole mill. There was no emergency stop button on the roller mill or an emergency stop button sufficiently close to the roller mill which would be in reach of a worker who had become trapped or caught in the machine.
13. At the time of the incident Mr Jenkins was unaware of any safe operating procedures being in place for the roller mill or other equipment at the premises and had never been run through any safe operating practices for plant. Mr Jenkins was not aware of any risk assessments having being conducted on the roller mill prior to this incident.
14. On 20 July 2006 a section 62 Notice was issued to Allan Murphy, director of YSF, requesting documentation including copies of all technical information, operations, procedures or operators manuals for the Simon roller mill. No such documentation was produced.
15. Following the incident on 26 June 2006, Mr Nick Hall an employee of YSF conducted an internal audit of the Simon Roller Mill (also known as the horse plant roller mill). Mr Hall indentified that the rollers of the machine were accessible by opening the upper hatch doors and it was possible for injury to occur if they were accessed. Mr Hall also identified that the emergency stop button was not accessible to anyone trapped in the roller mill. Mr Hall recommended that emergency stop buttons be placed directly on the machine and that direct access to the rollers by the operator be immediately restricted. Mr Hall also recommended that appropriate administrative procedures be implemented.
16. Subsequent to the incident on 26 June 2006 YSF installed emergency stop buttons on each side of the roller mill. Mesh was also placed over the feed rollers of the roller mill and a metal lip was attached to the roller mill which prevented access to the main roller. Interlock cut off switches were installed on both upper hatch doors.
17. The defendant co-operated with the prosecutor in the investigation of the incident.
18. YSF was convicted in 1999 under sections 15 and 16 of the then applicable legislation and fined $1,000.00 in each case. On 16 August 2007 YSF was fined $27,000.00 and $40,800.00 in respect of two separate breaches and Mr Murphy was fined $1,700.00 and $2,380.00 in respect of two separate breaches. The breaches for which the defendants were sentenced on 16 August 2007 had occurred on 17 November 2004 and involved a stack of pallets loaded with bags of stock feed falling and bags striking a YSF employee causing serious injury.

9 Mr R Crow of counsel, who appeared for the defendants, read the following affidavits:

Mr Allan Murphy sworn 5 December 2008;

Mr Stephen Morrison, Mill and Maintenance Manager sworn 5 December 2008;

Mr Nicholas Hall, Manager of the corporate defendant, sworn 8 December 2008.

The deponents were not required for cross-examination.

10 Mr Crow also tendered a book titled "Gold Drop, the Centennial History of The Young Roller Flour Mill (1888 - 1988)" by Chris D. Starrs and references from Senator Fiona Nash and the Honourable Mick Veitch, Member of the Legislative Council, New South Wales Parliament. The Court also viewed a DVD of the operation of the Simon Roller Mill, which was prepared by Mr Hall and exhibited to his affidavit. The DVD showed the operation of the Simon Roller Mill.

11 Mr Murphy stated that he is the General Manager and Chairman of the Young Roller Flour Mill Co Ltd. YSF is a wholly owned subsidiary of the mill company, which is an independent flour miller not associated within the larger corporate groups. The Mill company has been in business since 1988, when it was purchased by Mr Murphy.

12 Mr Murphy stated that the mill employs 26 employees in its stock feed and flour milling operations and plays an important part in the local community by purchasing grain from local farmers. The mill supports local businesses, including transport companies, which are used to deliver flour to supermarket warehouses across Australia, including the IGA chain of supermarkets, White Wings and Woolworths and to transport stock feed around southern New South Wales to customers. It produces organic flour from locally grown organic grains for the supermarkets. Mr Murphy outlined the purchase of a Simon Roller Mill Machine in early 2005 from a mill in Victoria. He subsequently engaged local electricians and engineers to refurbish the roller mill. At about this time, he approached Mr Jenkins who was experienced in the operation of roller mills and other equipment to come and work for YSF. Mr Jenkins commenced employed with YSF on 1 August 2005.

13 Mr Murphy stated that he was working in the top floor end of the flour mill building on the day of the accident and described the steps taken by him upon being informed of the accident. These included contacting WorkCover to report the accident, isolating the machine by cutting the power at the power board and agreeing to allow an employee, Mr N Hall, the Sales Manager, to drive Mr Jenkins' wife and son to Sydney. Mr Murphy provided money for Mrs Jenkins' expenses while in Sydney.

14 The morning after the accident, Mr Murphy had a meeting with Mr Stephen Morrison, the Mill Manager and Mr Hall. After the meeting, Mr Morrison installed guarding above both sets of feed rollers on the top of the machine. He arranged for electricians to install cut-off switches on the access doors on both sides of the machine and extra emergency stop buttons. Chains were also installed on the bottom doors of the machine so that they could only be opened to about three inches. Mr Murphy asked Mr Hall to prepare an incident report. Photos of the modifications to the machine were forwarded to WorkCover. A risk assessment of the machine was also undertaken by Mr Hall. This took place on 27 July 2006. A copy of the audit was annexed to Mr Murphy's affidavit.

15 In late 2007, Mr Murphy engaged the services of Brian Fuller of Mutual Resource Management to develop an occupational health and safety management system. Mr Fuller was asked to examine the roller mill and the modifications that had been made to it. A new safety manual and occupational health and safety system was developed.

16 In 2007, Mr Murphy received notification from WorkCover that the Mill was to be case managed. Inspector Lisa Foley of WorkCover attended the Mill in January 2007 and issued a series of Improvement Notices which were implemented. On 2 February 2007, Mr Hall forwarded Inspector Foley an update on the defendant's progress in attending to the improvements which had been suggested by Inspector Foley. WorkCover visited the Mill during February, March, April, May and June 2008. During each visit, Inspector Lancaster made suggestions for improvements to the plant or system of work. Copies of progress reports relating to improvements suggested by Inspector Lancaster were annexed to the affidavit.

17 The Mill has been certified as complying with the requirements of the Codex Hazard Analysis and Critical Control Point (HACCP) in relation to the receiving of starting materials, storage, manufacturing, packaging, and distribution of animal stock feeds. A copy of the current certificate was annexed to the affidavit. The HACCP is a system of systematic preventive approach to food safety that addresses, physical, chemical and biological hazards as a means of risk prevention, rather than relying on finished product inspection. The system relies on key actions, known as Critical Control Points (CCPs) being taken to reduce or eliminate the risk of hazards. The system is used at all stages of food production and preparation processes, including packaging and distribution.

18 The Mill has also been assessed and certified as meeting the requirements of the Woolworths Quality Assurance Standards for organic flour and meeting the quality requirements within the Code of Good Manufacturing Practice for the Feed Milling Industry by the Stock Feed Manufacturers Council of Australia. Copies of the current certifications were attached to the affidavit.

19 Mr Morrison has been employed by the corporate defendant for the past 26 years. He has been the Mill Manager for approximately 18 years. Mr Morrison stated that the Mill had a daily output of approximately 30 tonnes. He said that Mr Jenkins was the Batching and Processing Plant Supervisor.

20 Mr Morrison gave similar evidence to Mr Murphy regarding the commissioning of the Simon Roller Mill and explained how grain was fed into the machine. In 2003, Mr Morrison prepared a Work Instruction Sheet for the roller mill which he said remains applicable to the refurbished machine. A copy of the document was annexed to his affidavit. It included under the heading "Special Safety Precautions": "Do not put hands in rollers while going."

21 He recalled, giving Mr Jenkins a copy of the safe operating document, although it was an agreed fact that at the time of the incident, Mr Jenkins was unaware of any safe operating procedures being in place for the roller mill or other equipment at the premises and had never been run through any safety operating practices for plant. Mr Jenkins was not aware of any risk assessments having been conducted on the roller mill prior to the incident: see agreed statement of facts [14].

22 Mr Morrison explained Mr Jenkins' duties which included setting up the roller mill for each day's production and operating the machine and ensuring that it was running properly. He formed the opinion that he was a skilled and very competent employee who knew all aspects of milling and stockfeed production. Mr Morrison said that both he and Mr Jenkins had been instructed in the operation of the machine by Andrew Mullen who, at the time, was employed as a Production Manager. He stated that the company had an induction procedure for new employees where they were provided with an induction booklet which they were asked to take home, read and sign a form stating that they had received and understood the induction booklet. Mr Jenkins signed such a form on 1 August 2005. A copy of the form signed by Mr Jenkins was annexed to the affidavit.

23 Mr Morrison described a problem that occurred with the roller mill, being that the flat belt which drives the feed rollers, slips on occasions due to the accumulation of dust. This causes the feed rollers not to engage and not to turn as they should. He said this was not a constant problem and routine maintenance of using an air hose to clean inside the rollers occurred. Mr Jenkins cleaned the machine. The corporate defendant employed Mr T Pollock to carry out all maintenance on the roller mill.

24 Mr Morrison described the process that Mr Jenkins undertook if the feed rollers were not engaging. This involved Mr Jenkins lifting one of the two upper doors on the machine to check whether the rollers were turning and pulling and pushing a lever which operated like a clutch on a car. Mr Morrison was not aware of any operating problems prior to the day of the incident. Mr Morrison stated that the only guard on the roller at the time of the accident was the top door. It weighs about 20 - 25 kilos and can be opened while the machine is operating. Opening the door does not disable the machine. Mr Morrison did not see any need for guards to be fitted over the rollers prior to the accident.

25 Mr Morrison was present when the accident occurred and described what Mr Jenkins was doing. He said Mr Jenkins was preparing to start the roller mill for the day's production. The top door of the machine was held opened by a broom providing access to the main rollers. He did not observe Mr Jenkins putting his hand between the feed rollers and the top large roller, but heard him scream as his hand became caught in the rollers. Mr Morrison immediately pushed the stop button which stopped the roller mill. Mr Morrison stated the day after the accident, he fixed a steel cover over the large rollers and a weld mesh cover over the feed rollers. He said the electricians also installed cut off switches so that, once the top lid is lifted, the machine is shut off, along with the rest of the plant in that area. Emergency stop buttons were also installed on both sides of the machine and a chain on the bottom door so that it could only be opened a few inches.

26 Mr Hall is employed as the Manager of the corporate defendant. He is also the Manager and representative on the Occupational Health and Safety Committees for the corporate defendant and the Young Roller Flour Milling Co Ltd. Mr Hall set out 11 courses that he had undertaken since May 2007, which included a 4 day occupational health and safety course conducted by TAFE and a Risk Assessment Workshop conducted by WorkCover. This latter course was attended on 2 December 2008. Mr Hall stated that since late 2007, he has worked with an occupational health and safety consultant, Mr Bryan Fuller of Mutual Resource Management to design and implement an occupational health and safety management system for the Mill, based on Australian Standards AS/NZ4801. As part of this process, a new occupational health and safety manual was distributed to employees in September 2008. A copy of the manual was annexed to his affidavit, together with the current training program for employees.

27 Since early 2007, Mr Hall has worked with various WorkCover Inspectors, who issued a number of improvement notices. A copy of progress reports sent to WorkCover following Inspectors' visits setting out improvements that had been implemented, was annexed to the affidavit. Mr Hall gave similar evidence to that of Mr Morrison that every new employee at the Mill was given a copy of an induction booklet and a safety manual and required to sign a form acknowledging that they had read and understood the manual.

28 Mr Hall described where he was when the accident occurred and the help that he provided to Mr Jenkins, which included driving Mr Jenkins to the local hospital and advising Mr Jenkins' wife of the accident.

29 Mr Hall said that he returned to the roller mill to ensure that it was switched off and isolated after going to the hospital. He then drove Mr Jenkins' wife and son to Sydney and provided her with money for her expenses whilst she was in Sydney.

30 Mr Hall returned to Young and attended a management meeting with Mr Morrison and Mr Murphy the following day. A copy of the minutes of the meeting were annexed to the affidavit, together with an incident report dated 28 June 2006. On 27 July 2006, Mr Hall stated that he produced a risk assessment in respect of the machine. A copy of the risk assessment was annexed to his affidavit.

31 A new occupational health and safety manual and a new safe work method statement was drafted for the Simon Roller Mill.

32 Mr Hall said that after the accident, he telephoned Mr Jenkins every couple of days to enquire about his health and he went to see him from time to time.

Relevant Principles

33 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]:

[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act 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]:

[I]t 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 [was] intended to provide "further guidance and structure to judicial discretion."

[10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows:

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

[11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:

The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63:

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. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated:

We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, 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. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows:

[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.

[15] 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 of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:

[I]t 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).

Consideration

34 The primary consideration, as set out in the above principles, is a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences as set out in the agreed statement of facts and the evidence. On the day of the accident, Mr Morrison, the Mill Manager and Mr Jenkins, the Supervisor of the area of the Mill known as the "horse plant" were attempting to get the feed rollers working on the Simon Roller Mill. The hatch door that allowed access to the rollers of the machine was being held open either by Mr Jenkins or propped with a broom. Mr Jenkins attempted to feel with his right hand whether anything like a nut or bolt may be catching or blocking the feed rollers. The feed rollers started turning and Mr Jenkins went to pull his hands clear. However, his right hand was pulled into the fast driving bottom main rollers. Mr Morrison's evidence that he was unaware of what Mr Jenkins was doing at the time of the accident, although standing beside him, to my mind, strains credulity.

35 The proximity of the employees to the unguarded rollers or "nip point" breached all safety standards which require employers to ensure employees remain at a distance from such nip points.

36 It was the defendants' failure to ensure that there was adequate guarding, fencing and interlocks on the roller mill that gave rise to the risk to the health and safety of the employees, particularly Mr Jenkins. A guard or fencing would have prevented access to the rollers whilst the machine was in operation. The absence of an emergency stop button on the roller mill, or an emergency stop button sufficiently close to the roller mill so that it was in reach of a worker who had become trapped or caught in the machine added to the defendants' failure to ensure a safe working environment.

37 At the time of the incident, Mr Jenkins was unaware of any safe operating procedures being in place for the roller mill or other equipment at the premises and had never been run through any safe operating practices for plant. He was not aware of any risk assessments having been conducted on the roller mill prior to the incident. A s 62 notice seeking documentation did not produce any materials. Mr Morrison's evidence was that every new employee was given a copy of an induction booklet and safety manual. Mr Morrison's evidence is that on 1 August 2005, Mr Jenkins signed an acknowledgement form that he had received and understood the induction booklet. Mr Morrison stated that he recalled giving Mr Jenkins a copy of the safe operating procedure for the roller mill that he prepared in 2003. I propose to deal with this last piece of evidence on the basis that Mr Morrison's recollection is imprecise.

38 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Although there was an induction booklet for employees, it made no reference to operating machines in the Mill. At the time of the accident, there was no documentation addressing the operation, procedures or operator's manual for the Simon Roller Mill. The failure was the absence of adequate guarding, fencing or interlocks on the roller mill which exposed Mr Jenkins to risk. Following the incident, Mr Hall identified that the rollers of the machine were accessible by opening the upper hatch doors and it was possible for injury to occur if they were accessed. Mr Hall also identified that the emergency stop button was not accessible to anyone trapped in the Roller Mill.

39 In respect of foreseeability, counsel for the defendants acknowledged that the machine was not securely guarded because the doors could be opened whilst the rollers continued rotating. This concession makes it unnecessary for the Court to resolve the factual issues about Mr Morrison's awareness of a previous occasion when Mr Jenkins' finger was caught in the machine. Even if Mr Morrison had not been aware of such an incident, the defendant conceded that he should have foreseen the potential for it. See [11] of the agreed statement of facts. I would observe that all safe systems of work should be underpinned by a proper reporting system of incidents.

40 Subsequent to the incident, the corporate defendant installed emergency stop buttons on each side of the roller mill. There was an issue between the parties as to what day this actually occurred, however, I do not see this as a major factor to be determined. The fact is stop buttons were installed within a short period of time after the incident. The prosecutor submitted that because it was a simple step to take, it should have occurred many years earlier. I agree. Mesh was also placed over the feed rollers of the roller mill and a metal lip was attached to the roller mill which prevented access to the main roller. Interlock cut off switches were also installed on both upper hatch doors. These remedial steps were simple and inexpensive to implement.

41 Whilst the consequences of an accident will not, of itself, dictate the seriousness of the offence, the occurrence of serious injury, as has occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32] and the cases referred to therein. See also Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337.

42 It is necessary to assess the degree of culpability for the breach of the occupational health and safety that can properly be attributed to the acts or omissions of the defendants in order to determine the gravity of the offences to which the defendants have pleaded guilty. The failures here are to have proper and adequate guarding of a machine and to provide adequate training, instruction, and information to employees working on or with the Simon Roller Mill.

43 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was readily foreseeable, that access could be gained to the machine while it was operating.

44 The seriousness of the risk, its foreseeability and the ease of removing that risk, renders this a very serious offence. There is also the particular aggravating factor of the serious injury to Mr Jenkins: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

45 In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral Aluminium Ltd v WorkCover Authority of New South Wales at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. I consider it is appropriate to draw attention once again to the need for employers operating dangerous machines to ensure that such machines are adequately guarded. Mr O'Neil submitted that the penalty should include a significant element for general deterrence. I agree with this submission. It is therefore important that I give appropriate weight to the need for general deterrence in determining penalty.

46 In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendants to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendants from further offending against the Act and/or for the purposes of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety, particularly in light of WorkCover case managing the Mill. The corporate defendant, as described in the evidence of Mr Morrison and Mr Hall has introduced a number of initiatives to avoid an incident similar to this occurring in the future. I include an element in the penalty for specific deterrence.

47 Incidents such as this should not be happening. The very reason that social legislation such as the Occupational Health & Safety Act 2000, and its predecessor, the Occupational Health & Safety Act 1983, not to mention the Factories, Shops and Industries Act 1962 were introduced was to eliminate risks associated with accessing dangerous machines. Guarding of machines with nip points is fundamental to ensuring safety. Needless to say, the legislation applies equally throughout this State. Employers in country New South Wales must ensure the health and safety of employees and avoid occupational health and safety crimes. All employers must remain vigilant so that employees are not exposed to risk to their safety. A man has been seriously injured which should not have occurred.

48 The relative subjective considerations include pleas of guilty at the first available opportunity. I propose to allow discounts of 25 per cent for the pleas of guilty to the charges in accordance with the principles outlined in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

49 I take into account that the defendants co-operated with the WorkCover Authority in its investigations of the incident, the corporate and personal defendants' activity in the Young district, as stated in the references tendered in the proceedings and the defendants' strong commitment to occupational health and safety since the accident, as evidenced by its ongoing co-operation with WorkCover Inspectors who have made recommendations to improve the occupational health and safety at the Mill. The corporate defendant acted swiftly in implementing modifications to the roller mill after the accident. I also take into account the defendants' genuine remorse and assistance given to Mr Jenkins and his wife after the incident. I also note Mr Murphy's service to the Flour Milling Industry through offices held by him in industry organisations and his support for local businesses.

50 The corporate defendant was convicted in 1999 under s 15 and s 16 of the 1983 Act and fined $1,000 in each case. On 16 August 2007, the corporate defendant was fined $27,000 and $40,800 in respect of two separate breaches and Mr Murphy was fined $1,700 and $2,380 in respect of two separate breaches. The breaches for which the defendants were sentenced on 16 August 2007 had occurred on 17 November 2004 and involved a stack of pallets loaded with bags of stockfeed falling with a bag striking an employee of the corporate defendant causing serious injury.

51 The maximum penalties therefore in this case, given that the corporate defendant and the personal defendant have prior convictions is $825,000 and $82,500 respectively. The objective factors in respect of these offences, as outlined earlier in these reasons, requires a significant penalty.

52 I consider an appropriate penalty for the corporate defendant, taking into account all the circumstances set out in these reasons is $220,000.00

53 I consider an appropriate penalty for the personal defendant, taking into account all the circumstances set out in these reasons is $16,500.00

54 The prosecutor sought costs and a moiety of the fine, which I propose to order.

ORDERS

55 The Court makes the following orders:

In Matter No IRC 968 of 2008:

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

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

3. The defendant is fined an amount of $220,000.00 with a moiety to the prosecutor.

4. The corporate defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

In Matter No IRC 969 of 2008:

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

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

3. The defendant is fined an amount of $16,500.00 with a moiety to the prosecutor.

4. The personal defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

LAST UPDATED:
9 February 2009