Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Estreich v Hadfield [2012] NSWIRComm 88
• Hearing dates: 19 July 2012
• Decision date: 17 August 2012
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, Vice-President

Decision

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

2. The defendant is fined the sum of $30,000 with a moiety to the prosecutor.

3. Costs are reserved.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 - defendant a director of a corporation - corporation now deregistered - defendant unrepresented - obvious risk of entangled posed by presence of unguarded machinery at metal spinning facility - employees required to reach into the machine whilst in operation to lubricate blank metal discs - defect in machine's control system allowed machine to restart spontaneously when start button became jammed with lubricant residue whilst operators were reaching inside - young and inexperienced worker exposed to risk - left unsupervised - worker became entangled in the machine - serious injury suffered - worker later died in hospital - plea of guilty - sentencing - objective factors - maximum penalty - risk was highly foreseeable - high risk of catastrophic injury - general and specific deterrence - consideration of worst category of cases - subjective factors - remorse and contrition - cooperation with prosecutor - discount for plea - first offence - consideration of s 6 of the Fines Act 1996 and defendant's capacity to pay - limited financial evidence before the Court - no significant reduction in penalty - penalty imposed - moiety - costs reserved
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Butler v Regina [2012] NSWCCA 54; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8; Holohan v R [2012] NSWCCA 105; Ibbs v The Queen (1987) 163 CLR 447; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21; Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992; Inspector Jelley v Albright & Wilson (Australia) Limited [2007] NSWIRComm 148; (2007) 164 IR 456; Inspector Jelley v Lanza Management Pty Ltd and Guiliano Lanza [2008] NSWIRComm 125; Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210; Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82; Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34; Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114; Lawrenson Diecasting v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 464; MH v REGINA [2011] NSWCCA 230; McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; R v Helen Ryan; R v Coralie Coulter [2011] NSWSC 1249; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210; R v Rushby (1997) 1 NSWLR 594; R v Vusumuzi Twala (unreported, Court of Crimnal Appeal, 4 November 1994); Rahme v R (1989) 43 A Crim R 81; Retsos v Regina [2006] NSWCCA 85; Trevor Vernon Dodd (1991) 57 A Crim R 349; Veen v The Queen [No 2] (1988) 164 CLR 46; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; WorkCover Authority (NSW) Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125; Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340; WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363
• Category: Principal judgment
• Parties: Inspector Phillip Estreich (Prosecutor); Kevin Hadfield (Defendant)
• Representation: M P Cahill of counsel (Prosecutor); WorkCover Authority of New South Wales (Prosecutor); Kevin Hadfield in person (Defendant)
• File Number(s): IRC 1934 of 2011

Judgment

1 These proceedings involve a prosecution instituted by Inspector Phillip Estreich ("the prosecutor") against Kevin Hadfield ("the defendant"). Inspector Estreich is an inspector of the WorkCover Authority of New South Wales and is authorised by s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute proceedings.

2 The defendant was, as at the dates specified in the charge, the managing director of Australian Metal Spinning Pty Ltd (now deregistered) ("AMS"). AMS conducted a metal spinning business at 59 Birch Street, Condell Park in the State of New South Wales ("the factory"). The defendant is currently employed by Precision Metal Spinning Pty Ltd.

3 This prosecution arose following an incident at the factory on 4 May 2010 involving an employee of AMS, Wade Braeckmans. Mr Braeckmans had commenced employment as a labourer with AMS approximately three weeks prior to the date of the incident, on or about 8 April 2010, and was the subject of a three month probationary period. Mr Baeckmans performed work duties consisting of guillotine work, circle cutting work and general process work. Prior to commencing employment with AMS, Mr Braeckmans had had no industrial or work experience of any kind. He was 15 years of age.

4 At the time of and leading up to the incident, AMS owned and operated various items of plant including an "M&M 350VB Type F Automatic Spinning, Flow Turning and Necking-in Machine" ("the machine"). The machine was used to spin and form objects from flat discs of metal (also known as 'blanks'). It consisted of a chuck and die, various arms and a tailstock. A flat metal disc would be placed over the die, and, once the machine's cycle was commenced, the tailstock would automatically move by means of an hydraulic ram to clamp the disc against the chuck and die. The machine would then begin to spin the disc at a speed of about 6,000 rpm, and other hydraulic rams would move in sequence backwards or forwards to form the disc over the die. At the conclusion of the forming process, the machine would stop. The tailstock would then retract to the right of the machine allowing the operator to reach into it and remove the formed product from the die.

5 The machine's operation was controlled by a computer system known as the "Martian Electronics ME4000 Series Control System" ("the control system"). The control system was retro-fitted to the machine by Martian Electronics in 1994 following its importation from the Netherlands in 1982. Originally, the machine was controlled by mechanical and some electronic means. The control system modified the original system by adding a computer and computer program to automate the spinning process.

6 The control system allowed the machine to be operated in either of three modes: "manual", "function" or "automatic". In automatic mode the machine operated in accordance with instructions which had been pre-programmed into the control system, which directed the movement of each of the machine's arms.

7 When the machine was in automatic mode, operators were required to: insert a blank disc into the chuck and die; press the green coloured start button located on the machine's overhead computer control panel to commence the production cycle; after the machine had commenced to spin, but prior to the machine commencing to form the disc, lubricate the blank by holding a piece of soap against the face of the spinning disc or by manually applying lubricating oil to the face of the spinning disc (each of which required operators to reach into the machine whilst it was in operation); remove the finished product from the machine once the machine had stopped by reaching in and around the chuck area of the machine and between the chuck and the tailstock. Those tasks would then be repeated by the operator for the remaining discs.

8 After a number of production cycles, a residue of soap, grease, dirt and lubricating oil would form on the gloves worn by the operators of the machine. The residue would then transfer from the operators' gloves to the green start button when it was pressed to commence a new production cycle. Over time, after repeated production cycles the residue would build up around the start button and, as a consequence, it would occasionally become stuck in a wholly or partially depressed position. When the button became stuck and the machine was in automatic mode, the machine had the capacity to commence a fresh cycle spontaneously. Having commenced its cycle, the machine would, without further operator intervention, perform its programmed sequence of operations.

9 On the day of the incident, Mr Braeckmans was directed by the defendant to operate the machine. He had previously been trained by the defendant to operate the machine in automatic mode, and had done so on 30 April 2010, and 1 and 3 May 2010. The machine was being operated in automatic mode by Mr Braeckmans on the day of the incident.

10 At some time between 2.00pm and 2.45pm that day, Mr Braeckmans attempted to remove from the machine a completed metal object which had just been spun and formed. The tailstock had retracted and the normal production cycle had completed. However, while Mr Braeckmans was attempting to remove the object, the machine commenced a fresh production cycle. The cycle commenced without Mr Braeckmans having pressed the start button. As a result, Mr Braeckmans' right hand was pinned in the machine between the chuck and the tailstock. When the machine then began to spin, Mr Braeckmans' arm was pulled into the machine, and his hand was severed above the wrist. Mr Braeckmans' arm was degloved, that is, the skin of Mr Braeckmans' arm was peeled back, up to approximately the elbow. Mr Braeckmans was released from the machine by emergency workers, who amputated the lower portion of his right arm, which was entwined in the machine, from his upper arm. He later underwent surgery to re-attach his right arm and hand. Mr Braeckmans ultimately died in hospital whilst being treating for his injuries on 6 May 2010.

11 On the day of the incident, AMS had been the process of moving its business from the factory to a new premises. As a result, in addition to Mr Braeckmans, the only other person present at the factory was Vicki Hadfield, another director of AMS at the time. Ms Hadfield's role in the business was in the performance of administrative duties. She had no experience or training in metal spinning and was neither trained nor competent in the use and operation of the machine. Ms Hadfield was situated in the office of the factory, about 20 metres away from the machine, and had no direct line of sight to where Mr Braeckmans was working. In essence, then, at the time of the incident, Mr Braeckmans was working alone and unsupervised.

12 At no time was the machine fitted with a guard or an interlocking device.

13 Following the incident the machine was relocated from the factory to a site at Milperra. A fixed guarding system was then installed that incorporated a sliding interlocked access door to enable operators of the machine to load the metal disc and unload the finished component. A software interlock triggered by a switch on the safety guard cage was also incorporated into the control system controlling the machine. The effect of the software interlock was to ensure that, once the machine's guard was opened, the power to the moving parts of the machine would be disconnected until the guard was again closed. A safety switch was later installed and, about April 2011, after a further relocation, a self-checking function was incorporated into the computer control system software code to detect whether the start button had released after it was operated; if any fault condition was to be detected, the control system would display a message "Fatal Machine Fault" and then instruct the operator to press an 'emergency stop' button.

14 The charges brought against the defendant will be described in more detail below. The defendant was charged in his capacity as a director of AMS. The charge was laid under s 8(1) by virtue of s 26(1) of the Act. The defendant pleaded guilty to the charge as laid (although I will, below, comment further on the defendant's approach to these proceedings).

15 In addition to Mr Braeckmans, two other employees of AMS, Hong Phuc Bui and Nguyen Van Duc, were particularised as being at risk.

16 The risks specified in the charge were the risk of being caught/entangled in the moving parts of the machine, and the risk of sustaining consequential crushing, laceration, amputation, other similar or associated injuries or death.

17 The failures of the defendant particularised variously concerned a failure to fit the machine with a guard and interlock device; a failure to ensure the overhead computer control panel, in particular the green start button, was kept clean so that it did not become stuck; a failure to provide employees with a written work method statement or safe operating procedure in relation to the operation of the machine; a failure to provide employees with necessary training and instruction in relation to operating the machine and a failure to provide supervision to Mr Braeckmans on 4 May 2010. It was further alleged in the particulars of the charge that the defendant had permitted Mr Braeckmans to operate the machine in circumstances where the machine had a known capacity to commence a fresh production cycle in the absence of a command by the operator to do so.

The Charges

18 As mentioned above, the defendant was charged with one breach of s 8(1) by virtue of s 26(1) of the Act. The charge was set out in the application for order in the following terms:

I, Phillip Estreich, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter allege that, between about 1 January 2010 and 4 May 2010 inclusive, Kevin Hadfield of 21 Panorama Parade, Panania in the State of New South Wales, being a director of a corporation, namely Australian Metal Spinning Pty Ltd [ACN 092 328 400] ("AMS"), is deemed to have contravened section 8(1) of the Occupational Health and Safety Act 2000 by virtue of section 26(1) of that Act in that AMS, being an employer, between about 1 January 2010 and 4 May 2010 inclusive at 59 Birch Street, Condell Park in the State of New South Wales, by its acts and/ or omissions particulars of which are set out below,

FAILED TO ensure the health, safety and welfare at work of all of its employees, in particular Hong Phuc Bui ("Bui"), Nguyen Van Duc ("Nguyen") and Wade Braeckmans ("Braeckmans"), contrary to section 8(1) of the Occupational Health and Safety Act, 2000.

19 The particulars of the charge were specified as follows:

1.The risk to health, safety and welfare to which AMS' employees, in particular Bui, Nguyen and Braeckmans, were exposed was the risk of being caught/ entangled in the moving parts of a M&M 350VB automatic metal spinning lathe ("the lathe") and sustaining consequential crushing, laceration, amputation, other similar or associated injury or death.

2.AMS failed to provide plant that was safe when properly used in that it failed to ensure that the lathe was fitted with a guard and interlock device so as to prevent access by the operator to the machine's moving parts whilst they were in motion.

3.AMS required or permitted Braeckmans to operate the lathe in circumstances where the machine had a known capacity to commence a fresh production cycle in the absence of a command to do so from the operator.

4.AMS required or permitted a system of lubrication, by hand, of product being manufactured on the lathe whilst the product being manufactured was spinning. This system of lubrication required the operator of the lathe to apply a lubricant to the product being manufactured by holding the lubricant (usually a bar of soap) in the operator's hand and pressing it against the product being manufactured whilst that product was spun by the lathe at high speed. AMS ought to have had a system of lubrication which permitted the lubricant to be applied to the product remotely or mechanically or in any way which did not require the operator to hold the lubricant in his hand and did not bring the operator's hand into very close proximity to the spinning product.

5.AMS required or permitted the lathe to be operated by its employees, including Bui, Nguyen and Braeckmans, when the programming of the computer control system of the lathe did not preclude the machine from re-starting if and when the green start button on the overhead computer control panel of the lathe became stuck.

6.AMS failed to ensure that the overhead computer control panel of the lathe and, in particular, the green start button used by its employees, including Bui, Nguyen and Braeckmans, to commence the manufacturing cycle of the machine, was kept clean so that the button functioned correctly and did not stick in that:

(a)AMS required or permitted its employees, including Bui, Nguyen and Braeckmans, to operate the green start button whilst wearing gloves that were contaminated with soap residue, grease and/or oil such that soap residue, grease and/or oil accumulated on or about the green start button causing it to stick from time to time;

(b)AMS failed to provide any protective cover or guard over the green start button so as to prevent the accumulation of soap residue, grease and/or oil on and about the green start button in such quantities as was liable to cause the green start button to stick;

(c)AMS failed to provide any or any adequate program for the regular inspection and maintenance, including cleaning, of the overhead control panel, and in particular, the inspection, maintenance and cleaning of the green start button, so as to prevent the accumulation of soap residue, grease and/or oil on and about the green start in such quantities as was liable to cause the green start button to stick;

7.AMS failed to provide workers at the site, including Bui, Nguyen and Braeckmans, with a written work method statement, or safe operating procedure with respect to the operation of the lathe that:

(a)described how the lathe was to be operated, step by step;

(b)identified the work activities involved in the operation of the lathe assessed as having risks;

(c)identified the subject safety risks, including:

(i)the risk of entanglement in the moving parts of the machine;

(ii)the accumulation of soap residue, grease and/or oil on or about the start button in such quantities as were liable to cause the button to stick;

(iii)the capacity of the lathe to recycle without a specific command or action by the operator in the event that the green start button on the overhead control panel became stuck

(d)described the control measures that were to be applied to the control of the identified risks and, in particular, the control measures to be applied for the purpose of controlling and/or minimising the risk of workers becoming entangled in the moving parts of the machine, including but not limited to the inspection, maintenance and cleaning of the start button so as to prevent the accumulation of soap residue, grease and/or oil on or about the green start button in such quantities as were liable to cause the green start button to stick.

8.AMS failed to provide its employees , including Bui, Nguyen and Braeckmans, with such instructions and training as were necessary to ensure their safety whilst operating the lathe in that:

(a)AMS instructed and trained its employees, including Bui, Nguyen and Braeckmans to lubricate product being manufactured on the lathe by hand whilst the lathe was spinning; and

(b)AMS failed to instruct and train its employees in a maintenance, inspection and cleaning program with respect to the overhead computer control panel of the lathe so as to prevent, by regular cleaning, the accumulation of soap residue, grease and/or oil on or about the green start button in such quantities as was liable to cause the green start button to stick.

9.AMS failed to provide such supervision of Braeckmans, having regard to his age and lack of experience, as was necessary to ensure his safety while he was operating the lathe and in particular, AMS failed to ensure that a person who was trained to use and competent in the use of the lathe was present and in reasonable proximity of Braeckmans and oversighting his operation of the lathe on 4 May 2010 at such times that Braeckmans was required or permitted to operate the lathe.

Agreed Statement of Facts

20 The prosecutor tendered a document described as a "Statement of Agreed Facts". The defendant agreed that the document was a true statement of facts and it was admitted into evidence. The document was in the following terms:

1.At all material times the prosecutor was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (NSW) ('the Act') and empowered under section 106(1)(c) of the Act to institute proceedings in this matter.

THE PARTIES

2.At all material times Australian Metal Spinning Pty Ltd [ACN 092 328 400] (now de-registered) ("AMS") was a company duly incorporated and conducting a metal spinning business at premises at 59 Birch Street, Condell Park.

3.At all material times, the defendant was the managing director of AMS and was personally and directly involved on a day-to-day basis in its operations. He was based at the Condell Park premises.

4.The defendant began working as a metal spinner in the mid-1970's and thereafter continued to work in the metal spinning industry.

5.Vicki Hadfield ("Mrs Hadfield") is the wife of the defendant and as at 4 May 2010 was a director of AMS. Mrs Hadfield's role in the AMS business was the performance of administrative duties. She had no metal spinning experience or training.

6.At all material times, AMS owned and operated various items of plant including an M&M 350VB Type F Automatic Spinning, Flow Turning and Necking-in Machine ("the machine").

7.At all material times, Hong Phuc Bui ("Bui") was employed by AMS as a machine operator. Bui commenced employment with AMS in or about December 2009. From time-to-time during the course of his employment with AMS, Bui was required or permitted to operate the machine.

8.At all material times, Van Duc Nguyen ("Nguyen") was employed by AMS as a machine operator. Nguyen commenced employment with AMS in or about April 2010. From time-to-time during the course of his employment with AMS, Nguyen was required or permitted to operate the machine.

9.Wade Braeckmans ("Braeckmans") was a 15 year old boy employed by AMS as a labourer. Braeckmans commenced employment with AMS on or about 8 April 2010, subject to a three month probationary period.

10.Prior to commencing employment with AMS, Braeckmans had no previous work experience of any kind. In particular, he had no training or experience in relation to the operation of any plant and equipment, including but not limited to the kind owned and/or operated by AMS, in particular the machine.

11.For about the first three weeks of his employment with AMS, Braeckmans performed duties consisting of guillotine work, circle cutting work and general processing work.

12.On or about 30 April 2010 Braeckmans was required or permitted by the defendant to operate the machine. Braeckmans operated the machine all day on Friday 30 April 2010, half the day on Saturday 1 May 2010, all day on Monday 3 May and up until the time of the subject incident occurring between about 2.00pm and 2.45pm on Tuesday 4 May 2010.

THE MACHINE

13.The machine was manufactured by M&M in the Netherlands in 1981 and imported into Australia in 1982.

14.The machine, as imported in 1982, was not fitted with any form of guarding designed to prevent or reduce the risk of entanglement in the moving parts of the machine during normal operation, maintenance or cleaning, including but not limited to any form of interlocking physical device and/or presence sensing safeguarding system.

15.At all material times the machine was not fitted with any form of guarding designed to prevent or reduce the risk of entanglement in the moving parts of the machine during normal operation, maintenance or cleaning, including but not limited to any form of interlocking physical device and/or presence sensing safeguarding system.

16.At all material times, the machine was controlled by a computer control system known as the Martian Electronics ME4000 Series Control System ("the control system"). The control system was retro-fitted to the machine by Martian Electronics in 1994.

OPERATION OF THE MACHINE

17.The machine could be operated in either of three modes - "manual", "function" or "automatic".

18.In "automatic" mode the machine operated in accordance with instructions pre-programmed into the control system. "Automatic" mode was used for production runs. Minimal and only routine involvement from operators was required when the machine was used in this mode.

19.Braeckmans, Nguyen and Bui had been trained by the defendant to operate the machine in the "automatic" mode

20.At all material times, Braeckmans, Nguyen and Bui were required to carry out the following tasks in relation to the operation of the machine in "automatic" mode:

(a)insert a blank onto the chuck/die;

(b)press the "green start button" located at the left of the two rows of buttons, at the bottom right, on the overhead computer control panel;

(c)after the machine commenced to spin the blank but prior to the machine commencing to form the blank, lubricate the blank manually by holding a piece of soap in his hand and against the face of the spinning blank or alternatively by manually applying lubricating oil to the face of the spinning blank; and

(d)once the machine had finished forming the blank, had stopped spinning the finished product and the tailstock had disengaged and retracted to the right, remove the finished product from the machine. This involved the operator reaching in and around the chuck area of the machine and between the chuck and the tailstock.

The above sequence of steps would be repeated until the number of finished product required had been produced.

21.After a number of production cycles, a residue of soap, grease and/or oil formed on the gloves being worn by the operator(s).

22.As a consequence of repeated contact between the green start button and the operator's soiled gloves, soap residue, grease and/or oil accumulated in and around the button. This accumulation of soap residue, grease and/or oil resulted, intermittently, in the start button remaining stuck in a depressed position rather than returning to its original position.

23.Intermittently, when the green start button was stuck in a depressed position at the end of the machine's production cycle [due to an accumulation of soap residue, grease and/or oil] the machine re-started its production without the operator having to depress the green start button to commence a fresh cycle.

24.At material times, the source code used to control or program the ME4000 Series Computer Control System was not designed to and did not prevent the machine from re-starting when the green start button remained depressed or stuck in.

4 MAY 2010

25.As at 4 May 2010 AMS was in the process of moving its business from its Condell Park premises to new premises situated at Milperra in the State of New South Wales.

26.On 4 May 2010 the defendant directed Braeckmans to operate the machine to manufacture components for heater flues. Braeckmans performed the duties as directed by the defendant.

27.At the time of the subject incident between about 2.00pm and 2.45pm, Braeckmans was working alone and unsupervised by any person competent in the use and operation of the machine. The defendant and other personnel of AMS who were trained in the use of, or had used, the machine were at the new factory premises at Milperra. The only other person present at the Condell Park factory was Mrs Hadfield who, at the time of the incident was at the front of the factory some 50 metres away from Braeckmans dealing with a delivery person.

28.On the day of the subject incident whilst Braeckmans was operating the machine, Mrs Hadfield was otherwise in the office of the factory, about 20 metres from the machine. There was no direct line of sight from the office to the area where Braeckmans was working.

29.The defendant had told Mrs Hadfield that if she could not hear the sound of the machine operating, she should check on Braeckmans.

30.At all material times, Mrs Hadfield was neither trained nor competent in the use and operation of the machine.

The Incident

31.At some time between about 2.00pm and 2.45pm on 4 May 2010, Braeckmans attempted to remove a heater flue component that he had just spun in the machine. The tailstock had retracted and the normal production cycle had completed. While attempting to remove the component, the machine commenced a new production cycle. This production cycle began without Braeckmans pressing the green start button and without Braeckmans' knowledge that the machine was about to re-start without intervention from the operator. The tailstock of the machine moved towards the chuck trapping and pinning the right thumb or right hand of Braeckmans against the chuck. The chuck and tailstock then began to spin resulting in catastrophic injury to Braeckmans' right arm -- his right arm was snapped off above the wrist and degloved up to about the elbow with soft tissue from his arm being spun around the chuck, die and tailstock of the machine.

32.Braeckmans yelled for assistance. Mrs Hadfield heard Braeckmans and attended at the machine where she saw that Braeckmans' right arm was severely injured and caught up in the machine. Mrs Hadfield said to Master Braeckmans words to the effect: "What did you do?" to which Master Braeckmans responded with words to the effect: "I thought it had stopped spinning."

33.Mrs Hadfield and two workers from a factory situated next door to the AMS premises then arranged for emergency services to be summoned.

34.Braeckmans was released from the machine by ambulance officers and a medical recovery team who amputated the distal portion of his right arm by severing a remnant of soft tissue that remained attached between his upper arm and the distal portion of his arm that was entwined in the machine.

35.After he had been released from the machine, Braeckmans was conveyed to Liverpool Hospital.

36.Subsequent to Braeckmans being removed from the machine and conveyed to Liverpool Hospital, emergency workers released the distal portion of Braeckman's arm and hand, which was still inside the glove that Braeckmans was wearing at the time of the incident. The distal portion of Braeckmans arm and the hand, still inside the glove, were placed on ice and also conveyed to Liverpool Hospital.

37.After Braeckmans' arm and hand were received at the Hospital, Braeckmans underwent surgery to re-attach his right arm and hand.

38.On 6 May 2010 Braeckmans died while still in Liverpool Hospital.

INSTRUCTION AND TRAINING

39.Braeckmans, Bui and Nguyen had all been trained in the use of the machine by the defendant personally. Such training included the manner of applying lubricant by hand to the spinning blank and the manner of removing formed components from the machine at the conclusion of a production cycle as outlined in paragraph 20 above. When operating the machine in the period 1 January 2010 to 4 May 2010, Braeckmans, Nguyen and Bui all applied lubricant to the spinning blank and removed formed components from the machine at the conclusion of a production cycle in the manner outlined in paragraph 20 above.

40.Prior to the incident, when the machine was in "automatic" mode and the "green start button" on the overhead computer control panel of the machine was contaminated with dirt, grease, oil and / or soap residue, the "green start button" was observed by Nguyen and Bui to be slow to return to its original position and, from time to time, to remain depressed or partially depressed after it was pushed to activate the production cycle of the machine.

41.On at least three occasions prior to the incident, when the "green start button" was contaminated with dirt, grease, oil and/or soap residue, Nguyen observed the machine to start up at the end of its normal production cycle without Nguyen pressing the button and whilst Nguyen was reaching into the machine to remove finished product from the chuck and die.

42.Prior to the incident, Nguyen reported to Hadfield that the "green start button" was not operating properly and that it was sticking. Nguyen did not report to Hadfield that the machine had re-started at the end of its production cycle without Nguyen pushing the green start button.

43.Prior to the incident, the usual operators of the machine, Bui and Nguyen, were instructed by Hadfield to keep clean the controls on the overhead computer control panel, including the "green start button".

44.At no time prior to 4 May 2010 did AMS provide to Braeckmans, Nguyen or Bui a safe work method statement or safe operating procedure for the machine or any written instructions relating to the operation of the machine in "automatic" mode or otherwise.

45.At no stage prior to the subject incident on 4 May 2010 did AMS install a protective guard or cover over the green start button on the overhead control panel to prevent the accumulation of soap residue, grease and/or oil.

INDUSTRY STANDARDS

46.In August 2007 the (Commonwealth) Department of Education Science and Training and the Australian Industry Group jointly published a document entitled A Guide to Managing the First 100 Days of an Apprenticeship. This document stated:

Providing the apprentice with constant and direct supervision during the first 100 days is imperative for legislative compliance, as well as being an essential part of the business' duty of care. Constant visual and audible contact will prevent unnecessary risks that may lead to injury. Continuous supervision is required when the new apprentice is performing tasks for the first time and until skills are demonstrated by the apprentice on more than one occasion to show full understanding and competency. This should be an expectation by the apprentice and employer.

47.At no stage was the machine guarded, either mechanically and/or by an electrical interlock in accordance with relevant Australian Standards.

POST-INCIDENT CHANGES TO THE MACHINE

48.Following the incident on 4 May 2010, AMS completed its move to the Milperra premises. The machine was installed at those new premises with an electrically interlocked fence-style guard. The machine was subsequently sold as part of the liquidation of AMS. The machine has had a modified electrically-interlocked guard installed by its current owners.

49.Following the incident on 4 May 2010, the ME 4000 Series Computer Control system has been re-programmed to automatically check whether the green start button is still engaged when the machine reaches the end of its production cycle. If the green start button is still engaged when the machine reaches the end of its production cycle, a "fault warning" appears on the computer control screen indicating that the machine is in a "fault mode" and the machine will not commence a new cycle without human intervention and operation of the control panel.

The Course of the Proceedings

21 It is necessary to pause at this point to explain the somewhat unusual course of proceedings in this matter.

22 On 28 May 2012, the Court received a correspondence from the defendant, described as a 'submission', prior to a directions hearing which was held on 29 May 2012 ("the document"). The document contained a narrative describing the financial and personal circumstances of the defendant leading up to and following the May 2010 incident, and had attached copies of two bank statements. The prosecutor was not provided with a copy of the document in advance of the directions hearing on 29 May 2012.

23 The defendant was unrepresented at the directions hearing, and provided the document in anticipation that the matter may be disposed of on that occasion. The defendant was advised at the directions hearing of 29 May 2012 that if he wished to rely upon such material for the purposes of sentencing it would be necessary to have it introduced in the proceedings as either agreed facts or, if disputed, in the form of evidence which may be then tested.

24 During the sentencing hearing on 19 July 2012, the defendant again appeared in person. The defendant sought to rely upon the document as evidence going to his capacity to pay a fine. This course was opposed by the prosecutor.

25 The defendant was given repeated opportunities to elect to adjourn the proceedings in order to prepare appropriate financial evidence if he chose to do so. The defendant was also informed of his ability to give evidence himself in relation to such matters from the witness box. Mr M P Cahill of counsel, appearing on behalf of the prosecutor, further invited the defendant, given the seriousness of the charge, to seek pro bono legal assistance.

26 All such courses of action were declined by the defendant. The defendant also expressly declined to press the tender of the document at the sentencing hearing, and was adamant that he wished for the matter to be concluded on that day. In the result, the matter went forward without the contents of the document (subject to one paragraph concerning the defendant's remorse and contrition which was conceded by the prosecutor following an invitation by the Court to Mr Cahill to consider what facts within the document may be agreed between the parties).

27 A defendant who wishes to rely on the provisions of s 6 of the Fines Act 1996 ('the Fines Act') to have the amount of any monetary penalty against them tempered on the basis of a reduced capacity to pay bears the onus of putting before the Court appropriate evidence in support and of satisfying the Court, on the balance of probabilities, as to the truth of such evidence and its relevance to fixing penalty (McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [24]). Some latitude was afforded to the defendant, in this respect, being self represented. Ultimately, however, he elected not to put forward evidence as to his financial status which was the subject of a contest.

28 In the result, the Court had before it a very limited amount of evidence upon which to consider the defendant's capacity to pay. The available evidence comprised a small number of facts going to the defendant's financial circumstances which were conceded by the prosecutor, and a bundle of documents containing some financial records which was tendered by the defendant in proceedings without objection. The effect of the limited evidence upon the Court's consideration of the defendant's capacity to pay will be expanded upon in due course.

Verdict

29 Having regard to the charge in this matter, the particulars of the offence, the agreed statement of facts and, as will be discussed below, the evidence tendered in the proceedings together with the consideration of the features of the matter relevant to sentencing, I accept the plea of guilty by the defendant and will enter a verdict accordingly.

Evidence

30 As noted above, the prosecutor tendered a statement of agreed facts. He also tendered a sentencing bundle containing: 14 WorkCover colour photographs taken by Inspector Wayne James on 4 and 6 May 2010 and 7 WorkCover colour photographs taken by Inspector Estreich on 5 July 2011; an expert report of Noel Carmody on behalf of accessUTS Pty Ltd dated 17 April 2012; an expert report of Ross Underwood, Consulting Engineer, dated 4 May 2012; a WorkCover Authority of New South Wales publication entitled "Principles of Machine Guarding"; an Australian Industry Group publication entitled "A Guide to Managing the First 100 Days of an Apprenticeship"; a Department of Forensic Medicine Autopsy Report for the Coroner noted to have been received by the Coroners Court on 3 November 2011; the Australian Standard AS 4024. 1601-2006, "Safety of machinery Part 1601: Design of controls, interlocks and guarding - Guards - General requirements for the design and construction of fixed and movable guards"; the Australian Standard AS 4024. 1603-2006, "Safety of machinery Part 1603: Design of controls, interlocks and guards - Prevention of unexpected start-up"; the WorkCover Authority of New South Wales Factual Inspection Report of Inspector Leonie Ball dated 10 May 2010; and, the WorkCover Authority of New South Wales Inspector's Incident Investigation Report of Inspector James dated 12 May 2010.

31 The defendant tendered a bundle of documents containing: a letter from Rick Pearce, the defendant's current employer, to the WorkCover Authority of New South Wales dated 9 March 2012 stating that the defendant was currently earning a salary of $60,000 per annum, and was repaying his employer for an advance he had received at a rate of $250 per week; a Precision Metal Spinning Trust pay advice dated 27 June 2012 showing a weekly net pay of $915.05; a Citibank 'Ready Credit' account statement for the period 23 April 2012 to 22 May 2012 showing a balance owing of $11,556.28; an ANZ 'Frequent Flyer Gold' account statement for the period 16 April 2012 to 14 May 2012 showing a closing balance of $25,554.90; a document entitled "Schedule" dated 1 August 2003 pertaining to a loan agreement between the defendant and Vicki Jane Hadfield (as borrowers) and Isabell Currie (as lender) for the sum of $83,000 together with a handwritten note; an ANZ transaction statement dated 4 March 2003 showing receipt by the defendant of the sum of $83,000; and, a document entitled "Loan Agreement" which appeared to be a standard form document setting out the terms of a loan agreement including in relation to borrower's covenants, interest and procedures in the case of default (the form was blank in that it did not contain any names or reference to a specific loan agreement or amount, and was undated and unsigned).

32 It is necessary to address an issue of some significance which arose on the evidence. That is, the cause of Mr Braeckmans' death. The autopsy report, contained in the prosecutor's tender bundle, revealed that Mr Braeckmans "died of complications of traumatic amputation of the right arm and its treatment". However, in sum, the evidence is inconclusive on the question as to whether Mr Braeckmans' death was a result of the incident on 4 May 2010. As a factual matter, the May 2010 incident resulted in very serious injury and, in terms of risk, the manifestation of the risk specified in the charge (described at [16] above).

Submissions

Submissions for the Prosecution

33 Mr Cahill made oral submissions which are summarised as follows:

Objective Factors

1.The objective seriousness of an offence is the primary factor for consideration in the determination of sentence (Lawrenson Diecasting v WorkCover Authority (Inspector Ch'ng) (1999) 90 IR 464 (at 474)).

2.The application for order particularised two risks: the risk of entanglement by reaching into the machine with soap or oil for the purpose of lubricating the spinning disc; and the risk of entanglement by reaching into the machine to remove the formed product at the end of the production cycle.

3.The risk of entanglement was posed by the machine being unguarded and without an interlocking device to prevent operators' access to its moving parts.

4.The risk of entanglement was further posed by the system of work adopted by the defendant which required operators to reach into the machine to lubricate blank discs whilst it was in operation and to remove formed products at the conclusion of each cycle in circumstances where, at such times, the machine had the capacity, due to a defect in the control system, to commence a fresh production cycle without operator intervention when the green start button was stuck in a wholly or partially depressed position.

5.The risk was obvious and foreseeable. It was an agreed fact that the defendant was aware, having been informed by Mr Nguyen, that the start button had jammed on at least three occasions prior to the incident and during the period of the offence. It was also an agreed fact that the machine had the capacity to restart spontaneously when the button was jammed. Further, the risk of entanglement from having unguarded machinery was highly foreseeable.

6.The obvious and foreseeable nature of the risk makes the offence more serious.

7.Following the incident, the machine was fitted with a fixed guarding system which incorporated an interlocked door. The control system was also updated to include a software interlock and other features to prevent the machine from restarting spontaneously. These were simple remedial measures available prior to the offence which would have abated the risk of entanglement.

8.The risk carried the potential for a serious outcome which was manifested ultimately in the serious injury of Mr Braeckmans.

9.The Court should have regard to relevant aggravating factors pursuant to s 21A Crimes (Sentencing Procedure) Act 1999 ("CSP Act"). The matter was aggravated by the fact that Mr Braeckmans was a young and inexperienced worker for whom the defendant had an increased responsibility: Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78 and Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82. It was an agreed fact that that Mr Braeckmans operated the machine (and was thus exposed to the risk of entanglement) on 1, 3 and 4 May 2010 and that, on the day of the incident, he was operating the machine effectively unsupervised.

10.The prosecutor was reluctant to submit that the case fell within the category of most serious offences. Although there had been instances of 'near misses' involving Mr Nguyen (in which the green start button had become stuck and the machine had restarted itself whilst Mr Nguyen was reaching into the machine to remove the formed product), the defendant had only been informed by Mr Nguyen that the green start button had been sticking (and not that the machine had restarted itself at the end of its production cycle). It was conceded, thus, that the exact manner in which the risk ultimately manifested was not foreseen by the defendant, and that this factor may differentiate the case from what may be described as a most serious case.

11.The offence was, however, objectively very serious.

Maximum Penalty

12.The maximum penalty is a 'sign post' against which penalty is to be fixed.

13.In accordance with s 12(d) of the Act, and given the defendant has no prior convictions, the maximum penalty is $55,000.

Need for Deterrence

14.There should be a component in penalty for both general and specific deterrence.

15.General deterrence should figure significantly having regard to the context of the case. A particular consideration is the fact that Mr Braeckmans was a young and vulnerable worker.

16.In relation to specific deterrence, it was submitted that, notwithstanding AMS was deregistered following the incident and there is a reduced chance of the defendant re-offending, the defendant, nonetheless, continues to work in the metal spinning industry. In such circumstances, specific deterrence should feature at a moderate, as opposed to low, level in consideration of penalty.

Subjective Features

Plea of Guilty

17.In accordance with s 22 of the CSP Act, the Court may impose a lesser penalty than it would otherwise impose for the defendant's plea of guilty. The plea could also be taken into account in relation to s 21A(3)(k) of the CSP Act as a matter in mitigation of penalty.

18.The prosecutor acknowledged that the defendant entered his plea at a very early stage in proceedings and there was, therefore, no reason why he should not be entitled to the full discount for the utilitarian value of the plea.

19.It was submitted, however, that if the Court was of the view that the offence fell within the category of most serious offences, it would then be open to the Court to determine that, despite being an early plea, no discount should follow.

Remorse and Contrition

20.The Court may accept that a plea of guilty is evidence of remorse sufficient to satisfy the requirements of s 21A(3) CSP Act.

21.Nonetheless the Court needs to be satisfied that the remorse demonstrated by Mr Hadfield was genuine before he can be extended the benefit of remorse as a mitigating factor.

22.The prosecutor accepted that the defendant had publicly stated that he fully understood the gravity of what had happened, what he had been charged with and what he had pleaded guilty to. The prosecutor was not opposed to those public statements of the defendant being treated as evidence of his remorse and contrition.

Co-operation

23.The prosecutor acknowledged that the defendant co-operated in the course of the WorkCover Authority's investigation of the matter.

Prior Convictions

24.It was an agreed fact that the defendant was not otherwise "recorded". The prosecutor conceded that the defendant was entitled to the benefit of the leniency that is normally extended to first offenders.

Section 10 of the CSP Act

25.It was submitted that the matter was not one which involved extraordinarily or highly exceptional circumstances so as to invoke the application of s 10 of the CSP Act.

Capacity to Pay

26.Where a defendant seeks the benefit of s 6 of the Fines Act, the defendant bears the evidentiary onus of convincing the Court that it should exercise its discretion under that section. The prosecutor accepted that the defendant was a married man, currently employed and earning approximately $900 net per week, had a debt owed to him by one of his adult children in the sum of $180,000, had two credit card debts and an additional outstanding debt in the sum of $83,000. It was submitted, however, that the evidence which was placed before the Court by the defendant in this respect was not sufficient or reliable and would not enable the Court to be properly satisfied that its discretion under s 6 should be exercised.

27.In any event, the Court was still required to impose a penalty which reflected the objective seriousness of the offence. In this case, given the very serious nature of the offence, the Court would not significantly reduce any penalty to be imposed.

28.It was acknowledged, however, that the evidence put forward by the defendant did raise an issue of financial constraint and that was a matter which the Court could take into account in sentencing.

Victim Impact Statement

29.Whilst Mr Braeckmans' mother was present in court at the sentencing hearing, counsel for the prosecutor advised that "there is no Victim's Impact Statement at this stage".

Costs

30.The prosecutor sought costs as agreed or assessed. The prosecutor did not oppose, however, the Court reserving the question of costs.

Moiety of Fine

31.The prosecutor sought a moiety of the fine.

Submissions for the Defendant

34 The defendant made oral submissions. Putting aside submissions made at the earlier stage of the sentencing hearing regarding the admission of financial evidence, I propose to set those submissions out in full:

DEFENDANT: Thank you, your Honour. Where I would like to start is I fully understand what is coming before the Court and I understand the severity of the charges.

I can say that I am truly sorry for what the situation that happened happened. I had no intentions of those things happening, I never have and never will. I fully understand, you know, the pain and suffering that the family of Mr Braeckmans, but my family has suffered the same sort of fate because it has effected us severely over the last two years this has been going on.

I don't know what else I can say to change anything because I can't, what happened happened; and it was a situation I wasn't happy with because of financial position at the time, the GFC had come in, I had to sell my factory, I couldn't get refinanced, I don't have anything with it, that is why we were moving, in the middle of moving factories when this incident happened.

I don't know what else I can say other than sorry. I just don't understand, the sequence of things that have happened since that day have been spiralling out of control in our life and everyone else's life is effected. I don't know how to stop that other than try to get some sort of sentence today to finish some part of it. It will never stop [as] far as we are concerned. That is basically all I have to say.

HIS HONOUR: There is some material now before the Court of a financial kind. Did you wish to make any submissions as to what significance or conclusion I should draw from that financial material?

DEFENDANT: That situation basically comes down to the reason we had to sell our house in the first place was we were under pressure from the ANZ Bank. The company owed them a concern amount of money and they were asking for that money back, and the only way we could do that was by selling the house. We were given almost three, four weeks to put the house on sale, to sell it to get them their money back, which is what we did.

The other situation put me in a position of our daughter buying a house that it's a big enough house, if we didn't have anything else to do we could stay with her and live there. That is the main reason we sold to her in the first place. We have told her since then if what happens she has to sell the house, that is fine, she fully understands that. That one of the reasons why we had to sell was because the pressure from the banks to sell the house.

Relevant Principles

35 I discussed the relevant general principles for sentencing in this jurisdiction in some detail in WorkCover Authority (NSW) Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 (at [181] - [194]) ("Cross City Tunnel") and, more recently, in Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114 and Inspector Dall v Ullrich [2012] NSWIRComm 87. I do not propose to repeat those principles here. Rather, I adopt the principles set out in Ullrich at [40] - [42] (including an excerpt from Cross City Tunnel at [184] - [191]) for this judgment and will refer, when appropriate, to particular aspects of that judgment.

36 It is relevant to note at this juncture that the prosecutor sought to rely in these proceedings on various sections of the CSP Act. In particular, it was submitted that the Court would give effect to the purposes of sentencing identified in s 3A, the aggravating, mitigating and other factors identified in s 21A and s 22 in relation to the defendant's guilty plea. In Cross City Tunnel at [191] I noted that:

As was observed by the Full Bench in Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23).

37 In accordance with the approach taken in Cross City Tunnel and the submissions of the prosecutor, the relevant sections of the CSP Act will be given consideration in sentencing in this matter.

Consideration

Objective Features

38 This was, objectively, a very serious offence.

39 Not only was there a failure to provide adequate measures to eliminate what was an obvious risk of entanglement posed by the presence of an unguarded, dangerous machine in this case, a defect in the machine's control system meant that, when the green start button became jammed with residue as an effect of the lubrication process and the machine was being operated in automatic mode, the machine had the capacity to begin operation spontaneously at any time (including whilst operators were reaching into it). The risk was exacerbated by a system of work which actively exposed workers to the risk by requiring them to reach into the machine whilst it was in operation in order to lubricate blank discs. Moreover, the risk was one to which a young, inexperienced and, ultimately, unsupervised worker was exposed.

40 In all the circumstances, the risk of entanglement was highly foreseeable. There were simple remedial measures available prior to the incident which, had they been implemented, would have abated the risk. The likelihood of catastrophic injury occurring was high and became a reality when Mr Braeckmans became entangled in the machine and suffered a very serious injury. (That worker later died in hospital). There was also an absence of particular factors in mitigation of the objective seriousness of the offence in this case (although it must be observed that the defendant is entitled to mitigation of sentence because he does not have any record (CSP Act s 21A(3)(e)).

41 It should also be noted that whilst the particulars of the charge in this matter were focussed upon the culpability of the corporation, AMS, the defendant was charged in his capacity as a director of the corporation who, by s 26(1) of the Act, is taken to be responsible and culpable for its acts and omissions. This Court has previously held that, in assessing the culpability of a defendant charged under the Act by virtue of s 26(1), it is not a question of balancing the relative contribution to the offence by the corporation on the one hand and the defendant director (or a person concerned in the management of the corporation) on the other, but, rather, the Court proceeds upon the basis that the purpose of s 26(1) is to make an individual who is responsible to an extent for the running of the corporation similarly responsible for its acts or omissions (Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [38]).

42 In assessing the culpability of the defendant, weight will be placed upon the role played by the defendant in decision making in relation to employment and changes to practices, and in otherwise running the corporation (Walco Hoist (No 2) at [39]).

43 It is relevant to note that, in this case, the defendant was the managing director of AMS. He was personally and directly involved on a day-to-day basis in the operations of the corporation. The defendant trained employees of the corporation in the operation of the machine (including the manner of lubricating blank discs), directed Mr Braeckmans to operate the machine on the day of the incident (and made arrangements, or a lack thereof, for his supervision), and was reported to directly by Mr Nguyen as to problems with the machine's green start button becoming stuck. Having regard to these facts it must be concluded that the defendant played a significant role in the running of the corporation and was responsible to a similar extent for its acts and ommissions as particularised in the charge.

44 I shall elaborate.

45 The objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting, Capral Aluminium Limited v WorkCover Authoity of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 700; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383 and Walco Hoist (No 2)). I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] - [45]:

It is necessary to turn firstly to the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of employees (as charged) in this matter. In Cross City Tunnel it was observed, in that respect, at [195]:

The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100].

In Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, a majority of the High Court discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion is equally applicable to s 8 of the Act) as follows (at [11]):

What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.

The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]).

46 When restrained by the particulars of the charge, the relevant risk in the present matter was the risk to employees of being caught or entangled in the moving parts of the machine and sustaining consequential crushing, laceration, amputation, other similar or associated injuries or death.

47 This matter concerns a failure to ensure that the machine used at the factory for the purpose of metal spinning, and the systems of work relating to the to use of the machine by employees (including in relation to lubrication of metal discs), were safe and without risk to health.

48 The measures which would have obviated the risk, as described in the particulars, were as follows:

1.the fitting of guarding and an interlock device to the machine;

2.the provision of a system of lubrication which permitted lubricant to be applied to the blank metal discs remotely or mechanically or in any way which did not require operators to hold the lubricant in their hands and which did not bring operators' hands into close proximity of the moving parts of the machine;

3.the provision of a control system preventing the machine from restarting in circumstances where the start button became stuck in a wholly or partially depressed position;

4.the provision of a system of work which ensured the start button was kept clean so that the button functioned correctly and did not stick - either by providing a protective guard to prevent the accumulation of residue around the button, changing the method of lubrication to prevent the transfer of residue from operators' gloves to the button, or by introducing a program of regular inspection, maintenance and cleaning of the button;

5.the provision of a written work method statement or safe operating procedure identifying the safety risks involved in the operation of the machine, that is: the risk of entanglement; the risk that residue would accumulate around the start button and cause it to stick; and, the risk that the machine had a capacity to restart when the button become stuck. Such documents could have obviated the risk by describing how the machine was to be operated, and identifying measures to be applied to identify and minimise the safety risks associated with the operation of the machine;

6.the provision of adequate training and instructions to employees in a maintenance, inspection and cleaning program to prevent the green start button from becoming contaminated with residue and jammed in a wholly or partially depressed position;

7.the provision of adequate supervision for Mr Braeckmans while he was operating the machine.

49 There are a number of factors which increase the objective seriousness of the offence including the high degree of foreseeability of the risk, the occurrence of serious injury and the availability of simple remediable measures (see Cross City Tunnel at [191] (i) - (iii)).

50 The presence of an unguarded, dangerous machine is itself a factor which demonstrates a high risk to safety (Inspector Jelley v Lanza Management Pty ltd and Guiliano Lanza [2008] NSWIRComm 125 at [39]). The Court has previously stated, in Workcover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313 at [41], that:

... It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at [53].

51 The machine, as imported from the Netherlands in 1982, was not fitted with any form of guarding or interlocking device. Further, at all material times, the machine, whilst in the ownership of AMS, was not guarded or interlocked in accordance with the relevant Australian Standards (AS 4024.1601-2006: Safety of Machinery Part 1601: Design of controls, interlocks and guarding - Guards - General requirements for the design and construction of fixed and movable guards and AS 2024.1603-2006: Safety of Machinery part 1603: Design of controls, interlocks and guards - Prevention of unexpectes start-up), or any other appropriate mechanism to prevent operators accessing the dangerous parts of the machine when in operation or to ensure the machine could not restart whilst operators were reaching inside. The failure to guard in this manner was, on any objective consideration, a serious breach.

52 In Morrison v Powercoal Pty Ltd & Anor. (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117, the Full Bench acknowledged the proposition that an offence will be serious "where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible" (at [90] citing Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at [9] and Lawrenson Diecasting (at 476)). (See also Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 (at 27); McDonalds at [450]; and Capral at [82]). This Court previously found, in Kembla Coal (at 27), that the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of a defendant. Further, the existence of a foreseeable risk to safety which is likely to result in serious injury is a factor relevant in assessing of the gravity of an offence (Kembla Coal (at 27); Morrison v Powercoal (No 3) at [88], Capral Aluminium at [81]-[82] and Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [87]).

53 The risk of entanglement in this case was, as I have noted, a risk which was highly foreseeable. Not only was the machine unguarded, but the system of work implemented by AMS required workers to reach into the machine whilst it was in operation. This was evidenced by the fact that the system of lubricating blank metal disks required the machine's operators to hold a piece of soap against, or manually apply lubricating oil to, the blank metal discs once the machine had begun to spin but prior to the machine commencing to form the disc. Operators were also required to reach into the machine at the conclusion of each production cycle to remove the formed metal product. At no stage prior to the incident were employees of AMS, in particular Mr Braeckmans, Mr Nguyen and Mr Bui, provided with a safe work method statement, safe working procedure or written instructions in relation to the operation of the machine so as to obviate the risk.

54 The defendant was aware, prior to the incident, that, as a result of the process of lubricating the blank metal discs, the green start button on the machine had the tendency to become jammed after a period of time due to a build up of residue transferred from operators' gloves. The defendant was further aware that, when the green start button became jammed and the machine was being operated in automatic mode, the machine had the capacity, due to a defect in its control system, to spontaneously restart itself at any time without operator intervention (including whilst operators were reaching into the machine at the conclusion of each production cycle to remove formed product). This was evidenced by the fact that the defendant had been informed by Mr Nguyen on at least three occasions prior to the incident on 4 May 2010 that the start button had, in fact, jammed. It was also an agreed fact that the machine had the capacity to spontaneously commence a fresh production cycle in such circumstances.

55 However, although there was evidence before the Court of instances of 'near misses' involving Mr Nguyen (in which the machine had, in fact, restarted itself with his arm still inside), the defendant, on the evidence before the Court, had not been informed and was not aware of this fact prior to the incident. This is a factor which, to some extent, amerliorates the objective features of the offence already mentioned, which features may otherwise have lead to a conclusion that the case fell within the worst category of cases. (This issue will be further addressed below).

56 The vulnerability of the victim of an offence due to their very young age is an aggravating factor in sentencing (CSP Act s 21A(2)(l)). Mr Braeckmans, in this case, was such a victim. At 15 years of age, Mr Braeckmans would be considered to be a very young man in the community, and he certainly was a young man for employment purposes. He was also inexperienced, having had no work or industrial experience of any kind prior to commencing work as a labourer, just three weeks prior to the incident, with AMS.

57 This factor is also relevant to the assessment of the objective seriousness of the offence.

58 Employers carry an additional burden of responsibility for ensuring the safety of young and inexperienced employees on their worksites (GRD Minproc at [14]). The presence of young and inexperienced persons in the workforce gives rise to an increased responsibility on the part of employers to ensure adequate training and supervision is provided, particularly as to matters concerning the occupational health and safety of those persons (Newstart 150 at [93]).

59 In Inspector Maddaford v Coleman, the Full Bench said at [96]:

... we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 (at [230]):

... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.

As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]-[65].

60 Further to the aggravating factors already mentioned, whilst Mr Braeckmans had been trained in the use of the machine by the defendant personally, he had operated the machine on only three occasions prior to the incident, on 30 April 2010, and 1 and 3 May 2010. On 4 May 2010, during the course of AMS relocating the factory premises, Mr Braeckmans was directed by the defendant to operate the machine, and was left alone in the factory to do so (save for the presence of Mrs Hadfield who was situated some 20 metres away from the machine with no direct line of sight to Mr Braeckmans). Whilst the defendant had told Mrs Hadfield that, if she could not hear the sound of the machine operating, she should check on Mr Braeckmans, this could not possibly be said to constitute proper and appropriate supervision of the young man. He was effectively, as I have noted, left working alone.

61 At the time of the incident, Mr Braeckmans was simply obeying the instructions of the defendant in operating what was, as noted, a dangerous machine, in a dangerous manner as he had been trained to do. In doing so, Mr Braeckmans suffered a very serious injury and later died in hospital. These factors significantly increase the objective seriousness of the offence.

62 A related consideration is the availability of simple remedial measures. Following the incident, the machine was relocated by AMS to a premises at Milperra, and was installed at those new premises with an electrically interlocked fence-style guard. The machine was then sold as part of the liquidation of AMS. In the hands of its current owners, the machine has had a modified electrically-interlocked guard installed. Other steps which have been taken following the incident include updating the control system to include a software interlock and other features to prevent the machine from restarting spontaneously. I accept the submission of the prosecutor that such actions represented simple remedial measures which were available prior to the offence and which would have abated the risk of entanglement.

63 The relationship between the seriousness of the injuries suffered, or which may have been suffered, is relevant to the assessment of the gravity of the offence (Capral at [94]). The occurrence of the serious injury of Mr Braeckmans manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.

64 On balance, taking into account the circumstances of the incident, particularly insofar as it involved a risk which was highly foreseeable and the additional aggravating factor of the age, inexperience and lack of supervision of Mr Braeckmans, must result in the conclusion that the offence was, as noted, very serious.

65 There is a further issue which must be addressed at this juncture. That is, whether, given the seriousness of the objective factors of the offence just noted, the present case could be said to fall within the category of worst cases. This issue was raised, albeit tentatively, by counsel for the prosecutor.

66 The proposition affirmed by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465 (at 478) (citing Ibbs v The Queen (1987) 163 CLR 447) that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed is of long standing (see for example, more recently, Butler v Regina [2012] NSWCCA 54, MH v REGINA [2011] NSWCCA 230, and McDonalds at [141]). The task of the Court, therefore, is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is afforded. Whether a case falls within the category of worst cases is to be determined on the facts of the case, and there ought to be a reasonable proportionality between a sentence and the circumstances of the offence viewed objectively (McDonalds at [141], Trevor Vernon Dodd (1991) 57 A Crim R 349 and Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 698) citing Ibbs v The Queen (at 452)). The maximum penalty should not be imposed when a case is recognisably outside the worst category of cases, however, it does not follow that a lesser penalty must be imposed simply because it is possible to envisage a worse case (McDonalds at [141], Camilleri's Stock Feeds (at 698) citing Veen v The Queen [No 2] (at 478)).

67 For a case to be in the worst category of cases, it must be possible to point to particular features which are of a very great heinousness, callousness, odium or wickedness and it must be possible to affirm an absence of facts mitigating the objective seriousnes of the offence (as distinct from subjective factors mitigating the penalty to be imposed) (Holohan v R [2012] NSWCCA 105, R v Helen Ryan; R v Coralie Coulter [2011] NSWSC 1249 at [15] - [16], Inspector Stephen Campbell v James Gordon Hitchcock [2005] NSWIRComm 34 at [48] and R v Vusumuzi Twala (unreported, Court of Crimnal Appeal, 4 November 1994 (at 7)).

68 As I have explained, the objective factors in this matter are quite serious. This is particularly so given the presence of aggravating factors and the absence of factors in mitigation of the objective seriousness of the offence. However, this was not a case which involved a deliberate disregard of safety procedures by the defendant in the expectation or clear realisation that harm would result (Hitchcock at [48]). Whilst, as noted, there was evidence in these proceedings of previous 'near misses' involving Mr Nguyen, there was no evidence to support a conclusion that the defendant had prior knowledge of that fact (which he then failed to act upon). The prosecutor did not press for a finding of that nature. Further, there was no evidence that the risk of entanglement had manifested in the injury of any employee prior to the incident involving Mr Braeckmans on 4 May 2010. The defendant was also a first offender. These factors must lead to a conclusion that, notwithstanding its seriousness, this case lacks the particular qualities which would propel it into the worst category of cases, thereby attracting the maximum penalty.

69 It will be, therefore, necessary to have regard to the subjective features of this matter in assessing penalty.

70 Before doing so, however, it is appropriate to consider one final objective factor relevant to the assessment of penalty, that is, deterrence (see Cross City Tunnel at [192] (iii)). General deterrence is applicable in relation to these offences. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the manufacturing sector and other like enterprises of the need to ensure that adequate safety precuations are adopted in relation to inherently dangerous machinery in the workplace, particularly where the machinery is operated by young workers, the safety of whom must be vigilantly ensured. The failure to properly guard machinery continues to be a significant cause of injury in the workplace and should be deterred by a significant penalty (WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340 at [65]). Persons engaging workers must understand that offences which occur in circumstances where there has been a failure to properly guard machinery will be regarded as serious. It must be reiterated to those engaging workers in the manufacturing industry and other like enterprises engaged in the use of dangerous machinery that a failure to properly guard such machinery (and provide appropriate interlocking devices) in the present day is unacceptable.

71 Having regard to the circumstances of the offence, general deterrence will factor significantly in the penalty imposed on the defendant.

72 Whilst counsel for the prosecutor acknowledged that the defendant no longer occupied a management or director position following the deregistration of AMS, it was submitted that specific deterrence should nonetheless factor into the Court's consideration of penalty given that the defendant continues to work in the metal spinning industry (albeit, as an employee rather than as a director or in a management capacity). In accordance with the principles stated in Cross City Tunnel (at [193]), (accepting that, in the circumstances, the likelihood of the defendant re-offending is low), there will be an element for specific deterrence in the penalty.

Subjective Features

73 I now turn to the subjective features of the matter.

74 Demonstrations of remorse and contrition by defendants is a further factor which may be taken into account in mitigation of penalty: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) - (108); Morrison v Powercoal (No. 3) at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [39]; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78 at [53]; (2008) 172 IR 210; and McDonalds at [454].

75 I agree with the prosecutor's submission that the defendant's plea of guilty was evidence of his remorse sufficient to satisfy the requirements of s 21A(3) of the CSP Act. Although submitted only after it was raised by the Bench, the prosecutor also agreed that the document prepared by the defendant, albeit not tendered as evidence (mentioned above), in which the defendant stated that he understood the gravity of what had happened, what he had been charged with and what he had pleaded guilty to, could be treated by the Court as evidence of his remorse and contrition. The defendant, in submissions, reiterated that he understood why he had been charged, and the pain and suffering that the incident had caused the family of Mr Braeckmans. I also observed the disposition of the defendant in Court to be indicative of a person who felt genuine remorse and contrition over the loss of life of a young person in their employ. The defendant was unrepresented throughout the proceedings, and chose not to advance substantial argument or evidence in defence of the charge against him. At the sentencing hearing, the defendant noted that he simply wished for the matter to be concluded and would accept any penalty imposed. I accept that the defendant demonstrated genuine remorse and contrition over the incident, evidenced by his plea of guilty, various statements made and his conduct during proceedings.

76 A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. I accept that the defendant co-operated with WorkCover in its investigation and should, accordingly, be entitled to discount.

77 The next consideration is the discount which should be afforded the defendant for the entry of a plea of guilty.

78 The prosecutor acknowledged that the defendant entered his plea at a very early stage of proceedings and that there was, therefore, no reason why he should not be entitled to the full discount for the utilitarian value of the plea.

79 I discussed the principles applicable to an assessment of the appropriate discount for the utilitarian value of a plea in Ullrich at [77] as follows:

The determination of where, within the range of 10 - 25 per cent, a discount should fall in a particular case is a matter for the discretion of the sentencing judge, based on a consideration of the utilitarian value of a plea to the efficiency and effectiveness of the criminal justice system : R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], [115] and [153]. In Thomson, Spigelman CJ (as he then was) held, at [154], that there are two circumstances which will generally affect the appropriate level of discount in a particular case: the primary consideration is the time at which a plea is entered; the other consideration is the extent of the utilitarian benefit, for example, in the avoidance of a lengthy trial. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act).

80 I have already found that this matter is distinguished from the category of cases which can be described as the worst case. The defendant, therefore, is not disentitled from receiving a discount for his early plea on that basis. The defendant shall receive a discount of 25 per cent for his plea of guilty.

81 The defendant is a first offender. Further, as mentioned, there is a low likelihood of the defendant re-offending (see s 21A(3)(g) of the CSP Act).

82 It is clear from the foregoing discussion that there are some subjective features in relation to the defendant. These will be given weight by the Court in fixing penalty.

Capacity to Pay

83 As noted earlier, the application of s 6 of the Fines Act 1996 and the capacity of the defendant to pay any penalty imposed was an issue raised in proceedings.

84 Section 6 of the Fines Act provides:

6 Consideration of accused's means to pay

(cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A)

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.

85 There is a line of authority bearing upon the consideration of financial issues in relation to a defendant's capacity to pay a fine. The authorities set out the principles applicable to the resolution of this issue in the present case.

86 In Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, a Full Bench of the Commission noted (at [15], citing Rahme v R (1989) 43 A Crim R 81), that "[i]t is well established that a court should first arrive at a penalty and then review it on the basis of any case properly made out by a defendant of a lack of capacity to pay a substantial penalty or any penalty". The Full Bench went on to hold (at [22]) that, whilst the extent of the financial difficulties suffered by the defendant in that case had not been established on the evidence, the Court could accept, applying the 'spirit' of s 6 of the Fines Act, that the defendant had a limited ability to pay (as opposed to a total inability).

87 The principles which apply to the application of s 6 of the Fines Act, in circumstances where consideration is being given to fixing a penalty for a conviction of a criminal offence, were discussed by the Full Bench in McColl v John Watson Building Services at [24] - [25]. It was relevantly held:

24 We agree with and adopt the following principles which may be distilled for present purposes from the discussion of the authorities contained within the judgment in Inspector Mansell v Eleven Lighting Pty Ltd:

1. This court is obliged to take into account the means of a defendant to pay any penalty by virtue of s 6 of the Fines Act.

2. The imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. That alternative is not available in the case of a corporation.

3. A defendant who wishes to rely on the provisions of s 6 to temper the amount of any monetary penalty bears the onus of putting such evidence in support as is appropriate before the court and bears the onus on the basis of the balance of probabilities of satisfying the court as to the truth of such evidence and its relevance to the fixing of penalty.

4. Whilst it is for a corporate defendant to fully disclose its financial state, it is for the prosecutor to check that information in order to assist the court in determining the propriety of taking that evidence into account in imposing a monetary penalty. It is inappropriate for the court to exercise an inquisitorial role in this regard.

25 In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant:

1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317.

2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435.

88 By s 6 of the Fines Act, the Court is required to consider "such information regarding the means of the accused as is reasonably and practicably available to the court for consideration" and "such other matters as, in the opinion of the court, are relevant to the fixing of that amount". Those words leave the Court to assess the appropriateness and adequacy of the information according to the circumstances of the case (Karabelas at [17]). However, I accept the submission of the prosecutor that, where a defendant seeks the benefit of s 6 of the Fines Act, the defendant bears the evidentiary onus of convincing the Court that it should exercise its discretion under that section. That submission is in line with the relevant authorities in the area (set out above). Thus, the onus was upon the defendant to put appropriate financial evidence before the Court and to satisfy the Court, on the balance of probabilities, that the evidence was truthful and relevant to the issue of penalty (McColl v John Watson Building Services).

89 As noted earlier, there was limited evidence upon which the Court was required to determine whether to exercise its discretion under s 6 of the Fines Act in this case. The prosecutor conceded, in this respect, the following facts in relation to the defendant: that he is a married man; that he is currently employed and earning approximately $900 net per week; that he has a debt owed to him by one of his adult children in the sum of $180,000; that he has two credit card debts and an additional outstanding debt in the sum of $83,000. I note that it was also an agreed fact that AMS was liquidated and ultimately deregistered following the incident.

90 Some evidence verifying the defendant's current earnings, credit card debts and an additional debt owing on a loan (being the debt of $83,000) was placed before the Court. It may be inferred, from a submission made orally by the defendant, that the debt owed to him in the sum of $180,000 (referred to by the prosecutor) was owed to him due his having sold his house to one of his daughters.

91 It was submitted by the prosecutor that the evidence which was placed before the Court by the defendant in relation to financial matters was not sufficient or reliable, and would not enable the Court to be properly satisfied that its discretion under s 6 should be exercised. It was further submitted that, in any event, the Court should not significantly reduce any penalty to be imposed given the very serious nature of the offence.

92 Applying the 'spirit' of s 6 of the Fines Act (as referred to by the Full Bench in Karabelas at [22]), the Court can accept that Mr Hadfield is facing financial difficulties and has a reduced capacity to pay any fine evidenced by the loss of his business and the sale of his house, and the consequential but undefined credit implications that may arise from that situation. However, I am of the view that the extent of those difficulties has not been established. There is evidence, for example, that the defendant has a debt owing to him in the sum of $180,000.

93 It is noted that the primary consideration of the Court, in sentencing, is to impose a sentence which is commensurate with the seriousness of the crime (see, for example, R v Rushby (1997) 1 NSWLR 594 and Karabelas; Cross City Tunnel). Nevertheless, it is also the case that, where such issues are raised, the Court is not to impose a crushing or oppressive penalty nor should it impose a fine that the offender does not have the means to pay (Retsos v Regina [2006] NSWCCA 85; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210 (at 214); Karabelas at [16] and Rahme (at 86)). I am of the view that, on balance, the financial circumstances of the defendant should be taken into account, but not in a way that would result in a significant reduction in penalty.

94 Finally, I note that the application of s 10 of the CSP Act was an issue referred to by counsel for the prosecutor in proceedings (although it was not an issue raised by the defendant). Given the findings I have made as to the objective seriousness of the offence in this matter, and in the absence of any extraordinary or highly exceptional circumstances bearing upon any application under that section, there can be no proper basis for the Court to make an order under s 10 in this case.

Orders

95 In all the circumstances, the Court makes the following orders:

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

2.The defendant is fined the sum of $30,000 with a moiety to the prosecutor.

3.Costs are reserved.

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Decision last updated: 17 August 2012