Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 174 (14 December 2011)

Last Updated: 3 February 2012

Industrial Relations Commission New South Wales

Case Title:	Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd
Medium Neutral Citation:	[2011] NSWIRComm 174
Hearing Date(s):	12 December 2011
Decision Date:	14 December 2011
Jurisdiction:	Industrial Court of NSW
Before:	Kavanagh J
Decision:	1. I find the defendant guilty. 2. 2. The defendant is fined in the sum of $170,000 with a moiety to the WorkCover Authority of New South Wales. 3. The defendant shall pay the prosecutor's costs. As to the quantification of costs, I will hear the parties on this issue in the event no agreement is reached. Leave to relist at short notice.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - breach under s 8(1) - amended application for order - guilty plea - unsafe ceiling area used for storage - ceiling collapsed and employee injured - warning sign and guard rail installed nonetheless area still used for storage - no safe system of work - failure to properly instruct employees - failure to properly restrict access to unsafe area - defendant aware of risk - failure to warn of risk - failure to ensure employees had no access to known danger - foreseeable element - serious risk - general and specific deterrence - mitigating factors - defendant contributes significantly to employment in NSW and nationally - commitment to workplace safety to be commended - effective first aid system - appropriate remorse and contrition expressed - discount for plea - previous convictions - co-operated with prosecutor - penalty to reflect seriousness of offence - penalty - costs
Legislation Cited:	Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 Inspector Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994)
Texts Cited:
Category:	Principal judgment
Parties:	Inspector Doug Rolland (Prosecutor) Coles Supermarkets Australia Pty Ltd (Defendant)
Representation
- Counsel:	M K Scott of counsel (Prosecutor) P E McDonald SC (Defendant)
- Solicitors:	WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant)
File number(s):	IRC 1259 of 2009
Publication Restriction:

Judgment

1. This is a prosecution brought by Inspector Doug Rolland of the WorkCover Authority of New South Wales against Coles Supermarkets Australia Pty Ltd ("Coles") (the defendant) under the provisions of s 8(1) of the Occupational Health and Safety Act 2000 (the Act).

2. It is alleged the defendant breached s 8(1) of the Act in that it failed to:

Ensure the health, safety and welfare at work of all its employees, and in particular, Gloria Schulz and Nelleka Van Stratum, contrary to section 8(1) of the Act.

In particular:

(a) The employees of the defendant were put at risk of injury by falling a distance of approximately 2.27 metres through a suspended plasterboard ceiling located in the roof access room of the premises to the concrete ramp below when they accessed the suspended plasterboard ceiling to store or retrieve goods and/or materials.

...

(b) The defendant failed to carry out a risk assessment in respect of the weight bearing load of the suspended plasterboard ceiling in the roof access room to consider and identify the hazards associated with storing or retrieving goods and/or materials from the suspended plasterboard ceiling and the means by which the risk could be eliminated;

(c) The defendant failed to provide a safe system of work in relation to the storage and retrieval of goods and/or materials from the roof access room in that it allowed its employees to access the suspended plasterboard ceiling to store or retrieve goods and/or materials when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees;

(d) The defendant failed to ensure its employees were instructed not to store and/or retrieve goods and/or materials from the suspended plasterboard ceiling roof in the roof access room which suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees;

(e) The defendant failed to ban or prohibit employees from storing and/or retrieving goods and/or materials from the suspended plasterboard ceiling in the roof access room, which suspended plasterboard ceiling, did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. In particular, the defendant failed to give effect to and enforce its own procedure contained in the document entitled "Alert! Accessing Coolroom Roofs and Ceiling Spaces" issued on 7 June 2007, that its employees should not access or enter the void above a suspended ceiling;

(f) The defendant failed to restrict employees accessing the suspended plasterboard ceiling in the roof access room by ensuring access was restricted by a physical barrier at all time and/or instructing employees not to access the area verbally, in writing or by the use of signage.

3. The defendant pleads guilty to the charge. An agreed statement of facts has been tendered which relevantly reads as follows:

At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (the Act) and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter.

At all material times, Coles Supermarkets Pty Ltd (ACN 004 189 708) was a corporation whose registered address is situated at Wesfarmers House, 11 th Level, 40 The Esplanade, Perth, in the State of Western Australia, ("defendant").

At all material times, the defendant was a corporation that undertook the business of retail grocery sales.

At all material times, the defendant was an employer at Coles Manly Peninsula store, Coles Supermarkets Australia Pty Limited, corner Wentworth Street and Darley Road, Manly in the State of New South Wales ("store").

The defendant employed Gloria Schulz as a Range in Charge in the Dry Goods Department. Ms Schulz had been employed by the defendant since August 2004, and had been working in the Range in Charge position for approximately one year at the date of the incident, 29 August 2007

Ms Schulz's duties included the implementation of new layouts and the display of deleted items, which were stock that had been reduced to clear.

The defendant employed Nelleka Van Stratum as a Service Assistant in the Customer Service Department. Ms Van Stratum had been employed by the defendant since December 2005.

Ms Van Stratum's duties were to serve customers, supervise the opening of the service area and supervise the service area until the Service Manager arrived.

Roof access room

The defendant's store had a roof access room in the Customer Service Department next to the service counter. There was a white door that led to the roof access room. (Refer to photograph numbers 6 and 7 in Annexure "A")

The roof access room consisted of two sections. The majority of the room is a 'trafficable area' comprised of compressed form cement, supported by steel floor framing. This section of the roof access room is load bearing, and is the section on which the ladder to an upper mezzanine level was installed. The smaller section of the roof access room contained a plasterboard floor, known as the suspended plasterboard ceiling. At all times the trafficable area and the suspended plasterboard ceiling were separated by a fixed steel guardrail.

The trafficable area of the roof access room was used by the defendant to store items including drinks, dockets, receipt rolls, register bags and promotional items.

The roof access room measured approximately 2.2 metres long x 2.05 metres wide x 3.56 metres high. The trafficable area of the roof access room measured approximately 2.2 metres long x 1.06 metres wide x 3.56 metres high.

The steel guardrail was approximately 1.06 metres from and parallel to the left hand side wall. The guardrail was welded onto an access ladder. The access ladder led to a mezzanine level above. (Refer to photograph number 9 in Annexure "A")

Prior to the incident, the suspended plasterboard ceiling on the right side of the guardrail was above a concrete walkway ramp leading to the car park. (Refer to photograph number 9 in Annexure "A")

The distance from the suspended plasterboard ceiling to the floor level of the walkway ramp below measured approximately 2.27 metres.

Three red shopping baskets, containing Shrek promotion products, were sitting on top of the suspended plasterboard ceiling and against the right hand side wall, on the date of the incident. (Refer to photograph numbers 9 and 10 in Annexure "A") Above the suspended plasterboard ceiling was a sign that was white in appearance which read 'DONT STORE ANY STOCK ON CEILING Thank you'.

The incident

On 29 August 2007, Ms Van Stratum states she saw that Ms Schulz was deleting Shrek stock and "informed her" of the existence of the baskets containing Shrek promotional products as she "thought it was the right thing to do". Ms Schulz said that Ms Van Stratum directed her to retrieve the baskets containing Shrek promotional products, asking her to take them and reduce them and clear them out.

Ms Schulz asked Ms Van Stratum where the Shrek stock was. Ms Van Stratum got the key and unlocked the door to the roof access room. Ms Schulz and Ms Van Stratum then entered the roof access room. Ms Van Stratum pointed to where the Shrek promotional items were located, on the suspended plasterboard ceiling in the roof access room.

Ms Schulz could not reach the baskets containing the Shrek stock so she climbed onto and over the guardrail onto the suspended plasterboard ceiling in order to retrieve the Shrek items. Ms Schulz noted that there were no signs on the railing to indicate not to go over.

The suspended plasterboard ceiling collapsed under the weight of Ms Schulz and she fell through the suspended plasterboard ceiling onto the concrete car park ramp approximately 2.27 metres below.

Ms Schulz suffered injuries including a head laceration of 5cm requiring 4 stitches, whiplash to the neck, 12cm bruise on her left buttock, bruised tailbone and was admitted to hospital overnight. Ms Schulz was unfit for work for 4 weeks, was on restricted duties from September 2007, and returned to her pre-injury duties, with some restrictions, in January 2008. Ms Schulz returned to full pre-injury duties in March 2008.

System of work prior to the incident

The defendant had an Occupational Health and Safety (OH&S) Management System in place prior to the incident on 29 August 2007. The OH&S Management System, known as the Safety CARE Health and Safety Management S ystem, included sections on site induction, indicating OH&S responsibilities, OH&S training, consultation process, and is published on the intranet

The storage of stock in the trafficable area of the roof access room had been common practice at the store since September 2005.

The defendant had not undertaken a risk assessment to identify the hazards associated with storing or retrieving goods and/or materials from the suspended plasterboard ceiling and the means by which the hazards could be eliminated, prior to the incident.

The defendant had not undertaken a risk assessment in relation to the capacity of the suspended plasterboard ceiling to bear any weight.

The manufacturer of the suspended plasterboard ceiling, Lafarge Plasterboard advised WorkCover in writing on 15 October 2007 that "the Australian plasterboard manufacturers agree that plasterboard installed in a horizontal plane is designed to carry its own weight plus when required limited additional loading of thermal/acoustic insulation materials only."

The defendant did not have a safe system of work in relation to accessing the suspended plasterboard ceiling to store or retrieve stock when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. The defendant did not have a written procedure in relation to the, storage and retrieval of stock from the suspended plasterboard ceiling prior to the incident. Whilst the roof access room was kept locked, the defendant's employees could access the roof access room if they did so with the assistance of a member of the Store Management Team or the Service Desk Manager, who had access to the Duty Manager's key, as was the defendant's practice. As Ms Van Stratum was supervising the service area at the time of the incident, it was she who had access to the Duty Manager's key, which was kept at the Service Desk.

Prior to the incident, several of the defendant's employees, including Ms Schultz and Ms Van Stratum, were not aware that the suspended plasterboard ceiling in the roof access room should not bear any weight and should not be stepped on. Despite this, Ms Schultz and Ms Van Stratum were able to access the key to the roof access room and store and retrieve stock from the suspended plasterboard ceiling.

The defendant did not adequately instruct its employees not to store and/or retrieve goods and/or materials from the suspended plasterboard ceiling in the roof access room when the suspended plasterboard ceiling did not have the weight bearing capacity to be used for the storage of goods and/or materials or to support the weight of employees. On 7 June 2007, the defendant issued a Hazard Alert nationally to all stores in relation to 'Accessing Coolroom Roofs and Ceiling Spaces'. The Hazard Alert listed the actions to be taken by the store managers, which included to ensure team members never entered the void above a suspended ceiling, to assess all areas that were being used inappropriately for above ground storage (e.g areas above cool rooms, offices, ceiling spaces etc) and where inappropriate areas are identified, to advise all team members not to access the inappropriate areas or use them as storage areas. On 8 June 2007, Kelly Bishop confirmed that the Hazard Alert had been actioned. (Refer to Annexure "G")

However, Ms Schulz and Ms Van Stratum were not aware of this Hazard Alert and it was not explained to them. It is apparent from the circumstances of this incident that the defendant failed to ensure the Hazard Alert issued was complied with.

The employees who were aware of the suspended plasterboard ceiling, including Ann Cecilia Lassenius, Dry Goods Manager and Chris Gillett, Customer Service Manager, did not take any action to warn the defendant's employees about the risk associated with storing and retrieving stock from the suspended plasterboard ceiling in the roof access room.

The defendant did not provide adequate supervision to its employees in relation to the access, storage and retrieval of stock from the suspended plasterboard ceiling. Ms Lassenius who was Ms Schultz's supervisor, was not present at the store on the day of the incident.

System of work after the incident

WorkCover issued Prohibition Notice No. 150793 on 29 August 2007 to 'immediately cease work in the area open penetration located in the' roof access room, and to 'develop, implement and maintain a safe system of work to access stock items or perform work tasks in the area of open penetration located in the' roof access room.

The defendant no longer stores stock in the roof access room and has informed in writing all staff not to store any items in the roof access room. The roof access room continues to be locked and the only people with access to the key continue to be Store Management. The defendant erected a plywood laminate wall behind and against the guardrail that prevents any access or storage to the suspended plasterboard ceiling at all. There is a sign on the timber plywood reading "UNDER NO CIRCUMSTANCES IS ANY STOCK TO BE PLACED HERE. THIS AREA IS TO BE ACCESSED BY AUTHORISED PERSONNEL ONLY."

The Hazard Alert issued on 7 June 2007 was reissued on 12 September 2007. The Hazard Alert was distributed to all staff at the store and signed and dated as being read.

Relevant Principles

4. In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

5. Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

6. Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]:

The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]).

Consideration

7. In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):

... in our view, it 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"...

And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected...

8. These proceedings arise from an incident which occurred on 29 August 2007 at the Manly Peninsula Store of Coles. Two employees, Ms Schultz and Ms Van Stratten, entered an area of the store known as the roof access room, which room was divided into two areas. On one smaller side to the right facing the wall were stairs with a handrail. Across from the stairs to the wall with the entry door was a thick steel guard rail. The trafficable area of the room was made of compressed cement. It was load bearing. The area to the right marked off with the guard rail, however, was plaster board above a suspended plaster board ceiling. In breach of pre-existing signage, there were boxes of old "Shrek" stock stored in baskets upon the plaster board area of the access room. Ms Schultz climbed over the guard rail onto the suspended plaster board ceiling to remove the stock. The ceiling collapsed and she fell down some two and a half metres.

9. Coles have admitted to the particulars of the offence, although I will make some comment, a little later, as it is my view some of those particulars are repetitive.

10. While the site held both a warning sign and a guard rail over the plaster board area of the roof access room, nonetheless, management had allowed for that area to be used for storage. The risk to safety once goods are stored therein is immediately obvious. The two sales women were required to retrieve the stored stock.

11. I accept there is some overlap in the particulars as pleaded. There was not a safe system of work in place (particular (c)); there was a failure to properly instruct its employees (particular (d)) and a failure to properly restrict access to a dangerous roof access area (particular (f)). The other particulars pleaded have more general weight as descriptive of the circumstances of the offence.

12. In an assessment of the objective seriousness of the offence, the defendant proposes that as some safety features were in place this was not a most serious incident. Evidence revealed the roof access room was kept locked, there was the guard rail indicating demarcation of the dangerous site and there was a handwritten note on the wall warning "Don't store any stock on the ceiling". Further, a safety alert had been received by the defendant warning each of its stores of the hazards in the use of such roof storage areas. However, it is conceded by the defendant this store had not effectively put into operation any warning system as the meeting to discuss the alert was not held until mid July 2007.

13. It is difficult for the defendant to propose it had all reasonable safety features in place when it allowed storage in the area and required that storage to be retrieved. I am of the view the various signs and rails indicated the defendant was well aware of the risk to safety on this part of the site at its Manly store. It failed to warn its employees of the risk that the plaster board was not weight bearing and failed to ensure the employees had no access to the known danger. It must be held that there was a foreseeable element to this offence. It was an obvious risk well-known to the defendant. Given there was a foreseeable element, that makes the breach more serious.

14. The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence (WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Ltd , unreported decision of Schmidt J dated 25 February 1994). There were known steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact that each amendment to the system of work was readily available and practicable.

15. The principles of general and specific deterrence are also relevant in consideration. The approach to be taken has been considered in some detail in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] to [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]:

... 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. As to specific deterrence, Coles submits prior to the incident it was a safety conscious employer. Further, since the incident, it has initiated a number of measures to minimise and eliminate the risk of re-occurrence. It has replaced the suspended plaster board ceiling and installed a plywood barrier behind the guard rail to effectively lock off access to the particular area of the roof access room that is not weight bearing. The usage of the Manly store premises was reviewed. A further safety alert was issued. That triggered a need for a national audit in all stores of all roof access areas, plant and equipment used in such areas. Controls have been put in place if roof areas are used for storage to ensure there is no risk of falls from heights. This issue is further addressed in the design of all new Coles stores. Nonetheless, there must be a small element of specific deterrence in penalty.

17. As to general deterrence, the defendant accepts that the Court will take into account an element of general deterrence in determining penalty. Once more the Court is obliged to remind a major corporation who, in respect of its occupational, health and safety obligations, has work safe procedures in place, to nonetheless ensure "on the job" the safe performance of all tasks and that essential safety procedures in place must be adhered to. This incident once again serves as a reminder of the serious consequences, when risks to safety are recognised and appropriate safe working procedures are put in place to meet that risk, when those procedures are ignored the recognised risk can become a reality. While management knew the identified area was not safe, there was no proper information or training given to staff to warn of the risk to safety of the storage area.

18. The Court finds this was a serious offence.

19. Section 3A of the Crimes (Sentencing Procedure) Act 1999 contains a comprehensive statement of the purposes of sentencing. It provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

20. Section 21A of the Crimes (Sentencing Procedure) Act sets out the aggravating and mitigating factors that a Court takes into account when determining a sentence. As well as the factors identified in sub-section 2 (aggravating factors) and 3 (mitigating factors), the Court is to take into account any other objective or subjective factors that affect the relative seriousness of the offence.

21. The defendant relies firstly upon its commitment to workplace safety as defined in its preexisting systems of work and redefined in its amended systems. They have been placed before me and are thorough, exhaustive and to be commended. The system includes health and safety instruction such as inductions, specific department training including refresher training, the implementation of site hazard warnings, an inspection check list and safety committee meetings at both a national and at a store level.

22. Further, the evidence reveals there was a first aid procedure in operation which was used after the incident to provide immediate and effective assistance to Ms Schultz. I accept Coles have provided Ms Schultz with appropriate care and have expressed the appropriate remorse. Further, I accept it responded to the incident with extreme concern and formally expressed that concern and contrition to the Court.

23. The defendant submitted this was an early plea of guilty and that would attract the appropriate discount ( R v Thomson; R v Houlton ). The matter has some history. An Amended Application for Order was filed before the Court on 7 October 2011 by the prosecutor. There was a prior document filed by WorkCover on 24 August 2009. Coles raised objection to that first Application for Order. Coles then opposed the application to amend and asserted, by way of Notice of Motion, that the original Application for Order failed to identify the risk, failed to identify the acts or omissions constituting each defence and failed to identify the measures which it should have taken in the circumstances to avoid the risk. The prosector then sought to amend but defended the first Application. This Court in a prior judgment of 22 September 2011 ( Inspector Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126) dismissed the Notice of Motion and allowed the Amended Application for Order to go ahead. The Court held, however, the original Application for Order contained all the essential legal elements necessary for a charge and was therefore a valid charge. In such a circumstance an early plea was not entered to the Amended Application for Order. Nonetheless, once the Court made its determination, the defendant did respect that decision and acknowledged it by entering a plea of guilty to the Amended Application for Order. In R v Thomson; R v Houlton the Court of Criminal Appeal noted a defendant is entitled to a discount on penalty flowing from the utilitarian benefit of the plea in accordance with the principles as outlined in the guideline judgment. The defendant shall have a 10 percent discount for its plea in the circumstances.

24. I accept that the defendant co-operated with the WorkCover Authority and assisted it. Nonetheless, the defendant does not come to the Court as a first offender. It has faced some eight prosecutions over the years for breaches in various forms of its obligations under the Occupational Health and Safety Act . The last offence, as recorded, was heard before this Court. The offence also attracted a penalty of $825,000 because of it being not a first offence. The same is applicable to this charge.

25. The defendant submits that care must be taken in considering the past convictions and it is wrong to double punish an offender. Reliance was placed by the prosecutor upon the view expressed in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477] where it was stated "retribution, deterrence and protection of society may indicate a more severe sentence is warranted".

26. I am told Ms Schultz was supported by the corporation, as was her family, in her recovery stage and she has now returned to work on an injury management plan. It was said from the Bar Table she has received promotion. In accordance with s 21A(3), I accept the offender has shown remorse, has made appropriate reparation through its assistance to Ms Schultz and through the thorough adjustment it has made to its workplace practices and the use of its roof spaces. It has pleaded guilty. It has assisted the WorkCover Authority.

27. The defendant makes a significant contribution to employment in New South Wales and nationally. The defendant commenced operating in Victoria and currently employs 23,000 people in 238 stores across New South Wales. It has operated the Manly store since 2001. I accept Coles is a good community citizen, as demonstrated by its financial and nonfinancial contributions to charity and community work, as has been set out before me in affidavit form. I give positive consideration to the corporate reputation and personal reputation of its directors and accept that has probative force which would allow a measure of mitigation ( Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 (at 323)).

28. I take into account the above circumstances in mitigation of penalty and the subjective matters put before me. Nonetheless, this was a serious offence where a known risk became reality. The authorities persuade penalty must reflect the seriousness of the offence.

ORDERS

1. I find the defendant guilty.

2. The defendant is fined in the sum of $170,000 with a moiety to the WorkCover Authority of New South Wales.

3. The defendant shall pay the prosecutor's costs. As to the quantification of costs, I will hear the parties on this issue in the event no agreement is reached. Leave to relist at short notice.