Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Shepherd v Vinsente Pty Ltd [2013] NSWIRComm 8
• Hearing dates: 11 December 2012
• Decision date: 12 February 2013
• Jurisdiction: Industrial Court of NSW
• Before: Boland J, President

Decision

Matter No IRC 1275 of 2010 - Desiya Pty Ltd

(1) The defendant is convicted of the offence.

(2) The defendant is fined an amount of $60,000 with a moiety to the prosecutor.

Matter No IRC 1277 of 2010 - Vinsente Pty Ltd

(1) The defendant is convicted of the offence.

(2) The defendant is fined an amount of $90,000 with a moiety to the prosecutor.

The Court further orders that the defendants shall jointly and severally pay the prosecutor's costs in an amount as agreed or assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions of two corporate defendants under s 8(1) of the Occupational Health and Safety Act 2000 that constituted a partnership - Industry of cereal grain wholesaling in rural New South Wales - Employee suffered electrical burns when self propelled auger struck overhead powerlines - Guilty pleas - Sentencing - Consideration of objective and subjective factors - Consideration of approach to sentencing corporations that constitute a partnership where one partner had a prior conviction - Parity - Penalties imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Occupational Health and Safety Act 2000; Partnership Act 1892
• Cases Cited: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51; Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29; Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8; Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145; Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136; Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007; JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341
• Category: Principal judgment
• Parties: Workcover Authority of New South Wales (Inspector Ian Shepherd) (Prosecutor); Desiya Pty Ltd (Defendant in matter 1275 of 2010); Vinsente Pty Ltd t/as Agrigrain (Defendant in matter 1277 of 2010)
• Representation: Mr A C Casselden of counsel with Mr G Antipas of counsel (Prosecutor); Mr D Nagle of counsel (Defendant in matter 1275 of 2010); Mr C Magee of counsel (Defendant in matter 1277 of 2010); Workcover Authority of New South Wales (Prosecutor); Hancock Alldis & Roskov Lawyers (Defendant in matter 1275 of 2010); North & Badgery Solicitors (Defendant in matter 1277 of 2010)
• File Number(s): IRC 1275 and 1277 of 2010

Judgment

1 These matters concern the prosecution of Vinsente Pty Ltd and Desiya Pty Ltd for contravention of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). Vinsente and Desiya were in partnership and traded as 'Agrigrain'. The Partnership Agreement between Vinsente and Desiya ("the partnership") commenced on 1 July 2007. It states that Vinsente and Desiya are owners of the assets of the partnership in the ratios of 80 per cent and 20 per cent respectively.

2 The prosecutions arose out of an incident that occurred on 16 November 2008, at a business owned by the partnership at Tullamore Road, Narromine. The business involved cereal grain wholesaling both on a domestic and international scale. Mark Kevin Elliss was employed by the partnership as a labourer. On the day of the incident Mr Elliss was allocated his duties for that day, which included filling up bunkers with grain. At the time of the incident (at approximately 11:00am), Mr Elliss was operating a self-propelled grain auger.

3 Mr Elliss was required to move the auger to another location. He attempted to lower the boom of the auger but despite instruction he was unable to do so. Mr Elliss decided to drive the auger with the boom extended towards a bunker where grain trucks were waiting to be unloaded. As he did so, the auger struck 132kv high voltage power lines that crossed his path of travel.

4 Mr Elliss did not realise that the auger had come in contact with the power lines. It was when he attempted to alight from the auger and, in particular, when he placed his right leg onto the ground and whilst his left foot remained in contact with the auger, that he suffered electrical burns to his lower right leg and foot. He received initial treatment at Narromine and Dubbo Hospitals after which he was transferred to Royal North Shore Hospital where he underwent skin grafts to the lower right leg. As at 11 November 2009, Mr Elliss had not returned to work at Agrigrain.

5 The application for order in respect of Desiya (Matter No IRC 1275 of 2010) alleged that the defendant, by its acts or omissions, failed to ensure the health, safety and welfare at work of all its employees, and, in particular, Mark Kevin Elliss, contrary to s 8(1) of the Act. The particulars of the charge were in the following terms:

Particulars of the risk:

1. The risk referred to in these particulars and in the charge is the risk to health, safety and welfare of employees, and in particular Mark Elliss, of receiving an electric shock.

2. The defendant, as a consequence of failing to take the measures particularised below, exposed its employees and in particular Mark Elliss, to the risk whilst operating plant, being a self-propelled grain auger known as a "Grunter" or a part of the Auger ("Auger"), close to132kV overhead conductors ("overhead powerlines") situated at the premises.

Particulars of the defendant's failings in relation to information, instruction and training:

3. The defendant failed to provide such information, instruction and training to its employees as was necessary to ensure the health, safety and welfare of Mr Elliss whilst he was operating the Auger in close proximity to overhead powerlines situated at the premises.

4. The defendant should have taken the following measures to provide adequate information, instruction and training to employees in particular Mark Elliss and Luke Glase in relation to operating the Auger at the premises, in that the defendant:

(a) Should have provided Mark Elliss with adequate training in relation to the operation of the Auger, in particular in relation to the use and operation of controls to lower the Auger;

(b) Should have provided Mark Elliss with adequate training in relation to the operation of the Auger near or beneath overhead powerlines, in particular the requirement that it must remain outside the 2.1 metre approach distance prescribed by the Work Near Overhead Power Lines Code of Practice, 2006 ("the 2.1 m approach distance");

(c) Should have provided Mark Elliss with adequate training in relation to the operation of the Auger near or beneath overhead powerlines in particular the desirability to have an observer present;

(d) Should have provided Mark Elliss with adequate training in relation to keeping a proper lookout for overhead powerlines when operating the Auger at the premises;

(e) Should have provided Mark Elliss with a site specific induction as to the presence of overhead powerlines and the specific need to ensure that the Auger was sufficiently lowered before moving beneath them;

(f) Should have provided Luke Glase with adequate supervisory training to ensure that he remained with Mark Elliss until the Auger was lowered to a position which would not allow it to come within the "2.1m approach distance" of the overhead powerlines;

(g) Should have provided Luke Glase with adequate supervisory training to ensure that he remained with Mark Elliss to act as an observer to ensure the Auger would not come within the "2.1m approach distance" of the overhead powerlines when moved.

Particulars of the defendant's failings in relation to risk assessment:

5. The defendant failed to undertake, or cause to be undertaken, an adequate risk assessment as was necessary to ensure the health, safety and welfare of Mr Elliss whilst he was operating the Auger in close proximity to overhead powerlines situated at the premises.

6. The defendant should have taken the following measures to conduct an adequate risk assessment in relation to the operation of the Auger by Mr Elliss:

(a) identified the risk arising from the presence of power lines in the transport path of the Auger;

(b) identified the risk associated with operating the Auger in close proximity to overhead powerlines without the use of an observer;

(c) identified the risk of operating the Auger in close proximity to overhead powerlines without adequate guarding to prevent access of the Auger to the area around the overhead power lines;

(d) identified the risk of operating the Auger in close proximity to overhead powerlines without the installation of a limiter on the two vertical hydraulic rams of the Auger to prevent the travel of the Auger whilst the barrel of the Auger was in a position above the lowest rest position;

(e) identified the risk of inadequate signage to warn Auger operators that they are nearing overhead powerlines.

Particulars of the defendant's failings in relation to supervision:

7. The defendant failed to provide such supervision to its employees as was necessary to ensure the health safety and welfare of Mr Elliss whilst he was operating the Auger in close proximity to overhead powerlines situated at the premises.

8. The defendant should have taken the following measures to provide adequate supervision in relation to the operation of the Auger at the premises:

(a) assign an adequately trained person to assess Mark Elliss' competency in the use and operation of the Auger;

(b) assign an adequately trained person to supervise Mark Elliss in the use and operation of the Auger in close proximity to the powerlines;

(c) ensured that Luke Glase supervised Mark Elliss so as to remain with Mark Elliss until the Auger was lowered to a position which would not allow it to come within the "2.1 m approach distance" of the overhead powerlines;

(d) ensured that Luke Glase supervised Mark Elliss so as Luke Glase remained with Mark Elliss to act as an observer to ensure the Auger would not come within the "2.1m approach distance" of the overhead powerlines whilst in operation or transit.

Particulars of the defendant's failings in relation to the system of work:

9. The defendant failed to provide a safe system of work as was necessary to ensure the health safety and welfare of Mr Elliss for the operation of the Auger in close proximity to overhead powerlines situated at the premises.

10. The defendant should have taken the following measures to provide a safe system of work to employees in particular Mark Elliss for the operation of the Auger at the premises:

(a) Having in place an observer when the Auger was to be operated in close proximity to the overhead powerlines.

(b) Ensuring that the barrel of the Auger was lowered to a position which would not allow it to come within the "2.1m approach distance" of the overhead powerlines.

Particulars of the defendant's failings in relation to a safe working environment:

11. The defendant failed to provide a safe working environment as was necessary to ensure the health safety and welfare of Mr Elliss in the operation of the Auger in close proximity to overhead powerlines situated at the premises.

12. The defendant should have taken the following measures to ensure that there was a safe working environment in place for the operation of the Auger in close proximity to overhead powerlines situated at the premises:

(a) Having in place a physical barrier preventing contact by the barrel of the Auger with the overhead powerlines.

(b) Having in place guarding or a physical barrier and/or signage to warn Auger operators that they are nearing overhead powerlines.

(c) Installing limiters on the two vertical hydraulic rams of the Auger to prevent the travel of the Auger whilst the Auger was in a position above the lowest rest position.

As a result of the defendant's acts and omissions, Mark Elliss was placed at risk of injury.

As a result of the defendant's acts and omissions, Mark Elliss was seriously injured. Those injuries are a manifestation of that risk.

6 The application for order in relation to Vinsente (Matter No IRC 1277 of 2010) was in the same terms as that relating to Desiya. The two defendants pleaded guilty to the charges against them. This judgment deals with sentence.

Evidence

Agreed Statement of facts

7 The prosecutor tendered an Agreed Statement of Facts ("ASF") dealing with both prosecutions. In addition to matters already mentioned, the ASF indicated that Vinsente and Desiya, as partners in the Agrigrain Partnership, also employed:

(a) Paul Dixon as a labourer;

(b) Luke Anthony Glase, who at the time of the incident was a Yard Supervisor;

(c) David Leslie Frail, who at the time of the incident was also a Yard Supervisor;

(d) Ian Richard Rindfleish, who at the time of the incident was the Yard Manager; and

(e) Peter Douglas Pritchard, who at the time of the incident was the General Manager of the Agrigrain partnership.

8 Mr Elliss commenced his employment with Agrigrain in late April/early May 2008, when he was employed as a full time casual labourer. His work duties included bagging seed, general cleaning of silos and bunker work. He was also required to operate forklift trucks, heavy "yard" trucks and to operate and move augers of a non self-propelled and self-propelled nature. Mr Ellis had been trained in the use of augers of a self-propelled nature prior to the day of the incident.

9 The ASF described the incident in the following terms:

On Sunday, 16 November 2008, Mark Elliss commenced work at approximately 7.00am at the premises where he was allocated his duties for that day which included filling up bunkers with grain. At the time of the incident (at approximately 11:00am), Mr Elliss was operating the Auger.

Immediately prior to the incident, Mr Elliss was situated in an area at the premises known as 'West Bunker 2' when he received a call on the two-way radio instructing him to move to another bunker.

When Mr Elliss attempted to lower the Auger he found that the Auger would not lower properly. He then called Luke Glase, Yard Supervisor and the person in charge of bunkers at the premises, to provide assistance to lower the Auger.

Luke Glase then provided further instructions as to how to operate the controls and then demonstrated the method for lowering the boom of the Auger. Mr Glase stated that Mr Elliss had a turn using the controls to lower the boom of the Auger and Mr Glase observed that the boom began to lower. Mr Glase then asked Mr Elliss if he understood the instructions and whether he was alright to proceed. Mr Elliss indicated to Mr Glase that he was.

Mr Elliss stated that Luke Glase's assistance and instructions immediately prior to the incident amounted to "not even 5 minutes".

Luke Glase then left Mr Elliss who then again began to attempt to lower the Auger. No staff member of Agrigrain, or any other person was made available or tasked as an observer in order to ensure the safe operation and movement of the Auger by Mr Elliss.

Luke Glase, Paul Dixon and Damien Biles were working in the bunker next to where Mr Elliss was located with the Auger and were available to provide assistance as an observer to Mr Elliss.

Mr Elliss continued to encounter problems with lowering the Auger and stated that he believed that the problems were being caused by the hydraulics of the Auger. He continued to attempt to lower the Auger for approximately another 5 minutes.

Agrigrain had a maintenance team who were on site at the premises on the day of the Incident and were available to attend any breakdowns. They could be contacted by the two-way radio that Mr Elliss had with him on the Auger. Mr Elliss did not contact the maintenance team or seek their assistance.

Mr Elliss did not inform the Yard Supervisor, Mr Glase that he continued to encounter problems with lowering the Auger or that he believed that the problems were being caused by the hydraulics of the Auger.

Mr Elliss also stated that at this stage, there were a number of grain trucks waiting to be unloaded and, as such, he felt pressure to move the Auger towards the new bunker where the grain trucks were waiting to be unloaded.

Mr Elliss further stated that at this stage he had thought that the Auger was low enough to pass under the overhead 132,000kv high voltage power lines that crossed the road on his path of travel to the new bunker.

In 2007, Country Energy had installed hazard (flag) indicators approximately 300mm x 300mm on the overhead power lines to act as a visual aid and attract the attention of operators of augers and other high machinery at the premises.

Once Mr Elliss started moving the Auger, he stated that he "totally forgot the power lines were there" and as he was driving the Auger, he noticed a large spark however, he stated that he thought it was something to do with the Auger's engine.

The distance that Mr Elliss travelled in the Auger from the bunker before coming into contact with the overhead power lines was approximately 50 metres.

At the time the Auger struck the overhead power lines, Mr Elliss did not realise that the Auger had come in contact with the power lines. It was when he attempted to alight from the Auger and in particular when he placed his right leg onto the ground and whilst his left foot remained in contact with the Auger, that he suffered the electrical burns to his right leg.

Paul Dixon, labourer, witnessed the incident involving Mark Elliss.

Mr Dixon stated that there was a flash and then a noise, like a "hissing sound". He also stated that the tip of the grain Auger was touching the overhead power lines. At interview, Paul Dixon stated that he saw Mark Elliss being thrown approximately 5 feet from the Auger.

Mr Dixon immediately attended the scene and offered assistance until ambulance officers arrived.

In the week leading up to the day of the incident, Mr Elliss had worked 75 hours.

10 In relation to work systems before the incident, it was an agreed fact that the partnership conducted an induction process for new employees. The induction process depended upon the role the employee was to perform. The induction process was not a sophisticated one and involved the Yard Manager showing employees around the Yard, providing them with further information into what the workers' roles were, where they would be required to work and what equipment they needed and pointing out particular things around the site that were important to the tasks that they were to perform. The workers were also told other information such as how grain was moved around, the cleaning of silos and moving other machinery. The induction also covered occupational health and safety issues including the expectations placed on workers to comply with safety obligations and potential hazards at the site.

11 The induction included taking employees to the location of the overhead power lines in the Yard and showing them the powerlines. Employees were taken to the office where the Yard Manager provided them with a form known as an 'Employee Induction Checklist'. The Yard Manager would then read through the Checklist and explain the contents of the Checklist to the employee. Employees were then asked to read through the induction checklist and sign the Induction Checklist to indicate their acceptance and understanding of the matters contained therein.

12 The ASF stated that the induction also generally included the employees being given a document prepared by Country Energy entitled "Watch Out for Overhead Power lines - Working with Electricity Safely". The employees were required to the read through this document. However, Mr Elliss could not remember, at the time of being interviewed on 30 April 2009, having been provided with documentation relating to occupational health and safety.

13 In relation to Mr Elliss, he underwent the induction on commencement of his employment on 30 April 2008. The Yard Manager, Ian Rindfleish, conducted the induction. At the time of being interviewed on 30 April 2009, Mr Elliss stated that he could not remember being told anything nor shown any documentation relating to occupational health and safety issues during his induction.

14 Mr Elliss stated that on the day of the incident, he was not provided with any site-specific induction making reference to high voltage power lines. LukeGlase, Yard Supervisor, confirmed this assertion by Mr Elliss. Mr Elliss also stated that he had manoeuvred the Auger only once on the day of the incident and leading up to the incident underneath the power lines.

15 At an interview with WorkCover on 3 June 2009, Paul Dixon, Labourer, stated that when he commenced at Agrigrain he was inducted and that occupational health and safety issues were discussed such as the shed on the premises, grading plant in the shed and 'where not to go'. He was also given a small folder containing material on occupational health and safety and how to identify hazards. He recalls having been shown "Watch Out for Overhead Power lines - Working with Electricity Safely". However he does not recall when it was shown to him.

16 According to the ASF, DavidFrail, Yard Supervisor, stated that when he commenced working for the partnership, occupational health and safety issues were discussed with him such as, wearing safety boots and high visibility clothing and to 'keep a look out'. Neither Mr Frail nor Mr Glase could recall having been provided at their inductions or at any other time prior to the incident with "Watch Out for Overhead Power lines - Working with Electricity Safely".

17 In relation to training and instruction on the auger, the ASF stated:

Mr Elliss stated that in July 2008, he was instructed by Agrigrain about the use of the Auger, including that the augers had to be lowered before moving and that they were not to travel at more than 10 kilometres per hour.

Mr Elliss had previously been informed by Agrigrain about the location of the overhead power lines at the location of the Incident and had been advised to be careful whilst operating the augers in the location of the powerlines.

Luke Glase, Yard Manager, provided Mr Elliss with training in relation to the safe operation of the Auger.

Mr Elliss estimated that this training most probably took place one day prior to the Incident.

Mr Elliss stated that the training consisted of a verbal rundown on the machine and the operation of the controls of the Auger.

Mr Glase stated that as part of the training he provided to Mr Elliss he reminded him of the requirement to lower the boom of the Auger before moving the Auger. He also checked Mr Elliss' competence in the use of the Auger. He also mentioned to Mr Elliss to keep clear of the overhead power lines.

Mr Glase accepted that it was possible that the training he provided to Mr Elliss was conducted one day before the Incident.

David Frail, Yard Supervisor for Agrigrain stated that he had observed Luke Glase provide training to Mr Elliss the week before the Incident and that this training included walking around the auger, showing how to operate the gears, how to lower it, how to raise it, and how the auger operates.

During the course of his employment with Agrigrain Mr Ellis had operated the Auger for tasks involving moving the auger into and out of a stack in the Yard. He had also operated other augers which were transported via other plant at the premises. This included the movement of augers around the Yard.

Mr Elliss also stated that he had observed other employees of Agrigrain operate the Auger for several months prior to the Incident and was familiar with its operation.

Mr Rindfleish, the Yard Manager, who allocated tasks to the Yard employees each day, stated that Mr Elliss had been trained in the operation by Luke Glase in approximately September 2008, and that the training provided to Mr Elliss was more extensive than that described by Mr Elliss himself. Mr Glase did not have a clear recollection of the training provided to Mr Elliss.

Mr Rindfleish also stated that Mr Elliss had operated the Auger on a "fair few occasions" prior to the incident, loading trucks and moving it. Mr Rindfleish accepted it was possible that Mr Elliss hadn't operated the Auger from bunker to bunker prior to the day before the Incident.

Mr Pritchard, the General Manager also stated that Mr Elliss had operated the Auger on a number of occasions prior to the incident, and that he had observed him doing so.

However, Agrigrain was unable to provide any training record or identify a specific date on which such training and instruction had occurred or who conducted such training and instruction.

Mr Elliss stated that the day before the Incident was the first time he had operated the Auger involving the movement of the Auger out of bunkers and from bunker to bunker in the Yard.

Mr Elliss also stated that he moved the Auger approximately 15 times on the day before the Incident. However, this manoeuvring of the Auger was not in the vicinity of any power lines.

18 The ASF described the work systems after the incident:

On 16 November 2008 (the day of the incident), the Agrigrain partnership prepared a document titled 'Auger Moving Procedure Updated 16/11/2008'. The information contained in this document was provided to employees at a Yard meeting the day following the incident.

Peter Pritchard stated that copies of this document were also posted in the lunchroom area at the Agrigrain premises.

Following the incident, staff attended a 'Yard meeting' and were advised that David Frail was responsible for the movement of grain augers around the site and that both David Frail and Luke Glase were also designated trainers to staff concerning matters relating to the safe use of grain augers.

On 16 November 2008, Country Energy attended the site and erected a structure comprising of 2 star pickets with tape strung between and a sign warning of the overhead high voltage power lines. This structure was erected on either side of the road underneath the power lines at the site of the incident.

Subsequently, Agrigrain undertook further training of its Yard employees in safe auger movement in and around the Agrigrain site.

On or around 8 December 2008, in response to Improvement Notice (7-170712), the Agrigrain partnership engaged safety consultants 'Safe Production Solutions Pty Ltd' ("SP Solutions") and this resulted in a document being produced titled 'Safety Management System Proposal - a Risk based approach to the development of Safety and Health Management System'.

On or about 10 January 2009, Agrigrain prepared a 'Safe Operating Procedure' document for the Auger, which was provided to Agrigrain employees.

On 4 February 2009, in response to an improvement notice issued by WorkCover the Agrigrain partnership was provided with a document by SP Solutions entitled "Proposal for a Risk Assessment on Overhead Powerlines". The Agrigrain partnership verbally accepted this proposal.

In or about March 2009, Agrigrain partnership arranged for the erection of metal gantries across the roadway on either side of the overhead power lines on the western side of the premises. These metal gantries were in effect archways which went across the width of the roadway on either side of the high voltage power lines to prevent moving plant coming into contact with the power lines and to warn the operators of plant of the risk of the power lines.

On or about 12 March 2009, Agrigrain updated its 'Auger Moving Procedure' and 'Safe use of Auger Employees Checklist'.

On 5 May 2009, SP Solutions provided the Agrigrain partnership with a document titled "Agrigrain Pty Ltd Transport and Traffic Management Plan Version 2". The following day, during a yard meeting with all yard staff, Peter Pritchard read the Plan to the staff present.

Copies of the Plan were provided to staff. Item 15 of the document, headed 'Overhead Power Lines' discusses matters relating to the safe operation of vehicles around overhead power lines.

On 6 October 2009, SP Solutions also provided the Agrigrain partnership with a document titled "Safe Use of Augers at Agrigrain Training Manual".

19 It was an agreed fact that Vinsente and Desiya co-operated with WorkCover during the investigation. It was also an agreed fact that on 5 December 2007, Vinsente was convicted in the Chief Industrial Magistrate's Court under s 8(1) of the Act, but that Desiya had no prior convictions.

20 In addition to the ASF, the prosecutor tendered into evidence a bundle of photographs of the incident site which included pictures of the auger and the nature and location of the overhead power lines before and after the incident. Also tendered were a safety management proposal, a decision of the Chief Industrial Magistrate in relation to Vinsente Pty Limited of 5 December 2007, a prior conviction report in respect of Vinsente Pty Limited and a prior conviction report in respect of Desiya Pty Limited.

Evidence for Vinsente

21 The evidence for Vinsente comprised an affidavit of David Ringland, a director of Vinsente. Mr Ringland was not required for cross-examination. Mr Ringland explained that, in or about 1983, he became the owner of a share in the partnership that commenced trading as Agrigrain. From 1 July 1989, Vinsente was a corporate partner in the business known as the Agrigrain Partnership. In about 1995, Mr Ringland took over sole ownership of Agrigrain.

22 In 2005, Peter Prichard, who was the General Manager of the Agrigrain Partnership, was offered an option to purchase a 20 per cent share in the Agrigrain business. On 1 July 2007, Mr Prichard exercised his option to purchase a 20 per cent share in the Agrigrain business. This was done through Mr Pritchard's corporate vehicle, Desiya Pty Ltd.

23 On 1 July 2007, Vinsente entered into a Partnership Agreement with Desiya in relation to the Agrigrain business (the Agrigrain Partnership). Pursuant to the Partnership Agreement, Vinsente and Desiya were the owners of the assets of the Agrigrain Partnership in the ratios of 80% and 20% respectively.

24 As from 1 July 2007, Mr Ringland relinquished his title and role as Managing Director of Agrigrain. Thereafter, he became a Non-Executive Director of the Agrigrain Partnership. Mr Pritchard from that date became the Executive Director of the Agrigrain Partnership.

25 Mr Ringland deposed that Agrigrain is one of the largest employers in the Narromine area. It currently employs in excess of 50 people. At the time of the incident, the Agrigrain Partnership employed approximately 40 staff, ranging from permanent through to casual staff. These comprised management positions, administration staff, maintenance workers, truck drivers, labourers and machine operators. In addition, a number of casual employees are engaged during peak periods such as harvest (November/December) and sowing (May/June/July). Mr Ringland said Agrigrain is also a significant contributor to the economy of Central West NSW, both through its direct employment and also through indirect employment through its use of a range of local service providers to provide a range of services to the Agrigrain business.

26 Mr Ringland further deposed the Agrigrain Partnership had and has in place a Management Team which includes a General Manager, Yard Manager, Finance and Administration Manager, Trading Manager, Manager of Seed and Fertiliser, and Container Operations Manager. Agrigrain also has, since the incident, introduced the role of Occupational Health and Safety Manager. At the time of the incident, these managers assisted the then General Manager, Peter Pritchard, with the management of the operations of the business including in relation to occupational health and safety.

27 Mr Ringland described the system of work as at November 2008. This included a documented OHS Policy that included an OHS consultation statement and a series of safety procedures for various tasks that employees were required to undertake. Agrigrain also had in place a Procedures Manual. The Manual was divided into a number of core activities of the business and contained detailed procedures for undertaking various tasks within that core activity.

28 Mr Ringland said the Agrigrain Partnership had in place an induction process for new employees. This process included a documented "Employees Induction Checklist'.

29 Mr Ringland said he was aware that in respect to 'Power' the Employees Induction Checklist stated as follows:

Watch out for overhead wires when towing equipment around Yard. When moving high vehicles or equipment, perform a "Take Five." on the intended route.

Please ensure that you read documents regarding overhead power lines, "Look up and Live.

...

30 Mr Ringland understood that during the induction new employees were generally given a document prepared by Country Energy entitled "Watch Out for Overhead Power lines- Working with Electricity Safely". The employees were required to the read through this document, he said.

31 Mr Ringland described the operation of the Occupational Health and Safety (OHS) Committee at the site, a documented system for OHS Accident/Incident reports, toolbox meetings, training and instruction of staff, which was "largely practical, observational and 'hands-on' based rather than document or theory based" and the system for the maintenance and servicing of plant. In this last respect, Mr Ringland said plant was required to undergo regular schedule servicing and maintenance, which was performed by maintenance staff or, where necessary, third party service providers.

32 In relation to power line safety, Mr Ringland deposed:

At the time of the Incident, hazard indicators/flags were installed on the overhead powerlines at the Site, including at the location where the auger operated by Mr Elliss came into contact with the overhead power lines. The hazard flags/indicators measured approximately 300 mm x 300 mm. The hazard flags/indicators were designed to act as a visual aid and attract the attention of operators of Auger and other high machinery at the premises and in particular to indicate the presence of the overhead powerlines.

The hazard indicators/flags were installed by Country Energy on the overhead powerlines at the Site.

33 Following the incident, Mr Ringland indicated that the Agrigrain Partnership took four major initiatives to address both the particular risk that arose on the date of the incident and also, more broadly, in relation to workplace health and safety matters.

34 First, the Agrigrain Partnership engaged safety consultants to review the existing safety systems and to provide the necessary expertise to develop a risk based approach to Agrigrain's safety and health management system. The consultant's proposal, which was accepted by the partnership, included the development and implementation of a safety and health management system including:

A Safety and Health Management Plan;

Hazard identification and risk management activities (including a broad brush risk assessment)

Hazard identification training

OHS/Duty of Care training

Safe work operating procedures (including for machinery and equipment)

Review Processes; and

Improved communication between employees and management

35 Secondly, on 16 November 2008 (the day of the incident), the Agrigrain Partnership prepared a document titled 'Auger Moving Procedure Updated 16/11/2008'. The updated 'Auger Moving Procedure' added additional requirements beyond those contained in the existing Auger moving procedure, and in particular that:

all Augers were to be lowered to their minimum height for all movements;

that machinery was only to move under powerlines in the centre of the site on both the East and West site;

that Augers were to be checked by the Yard manager or Quality Assurance Manager before movement;

36 In relation to the movement of augers, Mr Ringland further deposed:

The updated 'Auger Moving Procedure' added additional requirements beyond those contained in the existing Auger moving procedure, and in particular that:

all Augers were to be lowered to their minimum height for all movements;

that machinery was only to move under powerlines in the centre of the site on both the East and West site;

that Augers were to be checked by the Yard manager or Quality Assurance Manager before movement;

A decision was also made by the management of the Agrigrain partnership that in order to limit the risk of further incidents involving the movement of grain augers around the site, that the Yard Manager, that David Frail would be responsible for the movement of grain augers around the site.

On 17 November 2008, (the day following the incident), all staff attended a 'Yard meeting' to discuss the Incident and the steps that Agrigrain was taking to address the risk that arose.

The information contained in the updated 'Auger Moving Procedure' was provided to employees at this Yard meeting.

Copies of this updated 'Auger Moving Procedure' were also posted in the lunchroom area at the Agrigrain premises by the General Manager, Peter Pritchard.

At the Yard Meeting information was also conveyed regarding the new system that required that the Yard Manager, David Frail would be responsible for the movement of grain augers around the site.

A decision was also made by the management of the Agrigrain partnership to designate both David Frail and Luke Glase to provide further training to staff concerning matters relating to the safe use of grain augers.

Subsequently, Agrigrain undertook further training of its Yard employees in safe auger movement in and around the Agrigrain site. This included an explanation of the designated pathways for crossing under the powerlines on site. This training was conducted by Ian Rindfleish, the Agrigrain Occupational Health & Safety Officer at that time. A list was prepared to document all the persons who received training in safe auger movement in and around the Agrigrain site.

On or about 10 January 2009, Agrigrain prepared a 'Safe Operating Procedure' document for the Auger, which was provided to Agrigrain employees.

On 4 February 2009, a team of Agrigrain personnel conducted a risk assessment facilitated by SP Solutions for traffic movements (vehicular and pedestrian) to identify high levels of risk associated with traffic movement.

On or about 12 March 2009, Agrigrain updated its 'Auger Moving Procedure' and 'Safe use of Auger Employees Checklist'.

Training was subsequently provided to workers in relation to Safe use of Auger Employees Checklist'.

In July 2009, the Agrigrain Partnership engaged SP Solutions to produce in conjunction with Agrigrain partnership employees with a Training Manual for the Safe Use of Augers at Agrigrain.

On 6 October 2009, SP Solutions also provided the Agrigrain partnership with a document titled "Safe Use of Augers at Agrigrain Training Manual". This document provides training and safe operating procedures for the range of augers used at the Agrigrain site. It also includes an Assessment and Competency document.

Agrigrain continues to provide training to workers, which deals with the operation of augers and the manner in which augers should be transported or moved using the 'Safe Use of Augers at Agrigrain Training Manual'.

37 Thirdly, in respect of power line safety on 16 November 2008, Country Energy attended the site and provided additional warning signage in addition to that which was attached to the overhead power lines in the vicinity in which the incident occurred. This involved the erection of a structure comprising of two star pickets with tape strung between and a sign warning of the overhead high voltage power lines. This structure was erected on either side of the road underneath the power lines at the site of the incident.

38 Mr Ringland further deposed in relation to power line safety:

On 30 December 2008, Agrigrain in conjunction with Country Energy conducted an Awareness workshop at the Agrigrain site. The workshop was attended by 8 Agrigrain employees, including the Yard Manager.

The workshop involved discussion of awareness of powerlines, the distances required as a minimum to be away from certain voltage lines, "look up and Live" and emergency procedures in case of an incident involving contact with power lines.

In January 2009, Agrigrain arranged for Country Energy to attend at the site and to conduct a safety presentation to a cross section of Agrigrain personnel, including most of the members of the safety committee.

Further, in consultation with Country Energy additional signage and safety tape was installed in areas around the site where there was a potential of coming into contact with the overhead power lines.

In January 2009, Agrigrain in conjunction with Country Energy and SP Solutions undertook investigations in relation to the construction of structures to control the traffic flow in the vicinity of the overhead Power Lines. In particular, a design was sought to ensure that in the event that an Auger was attempted to be moved without appropriately lowering the equipment it could not come in contact with the overhead power lines.

On 4 February 2009, the Agrigrain partnership was provided with a document by SP Solutions entitled "Proposal for a Risk Assessment on Overhead Powerlines". The Agrigrain partnership verbally accepted this proposal.

On or about 4 March 2009, safety consultants from SP Solutions undertook a risk assessment in conjunction with Agrigrain management and employees in relation to the Agrigrain site, this included consideration of the issues relating to safety of the overhead power lines.

On or about 5 March 2009, safety consultants from SP Solutions put forward a proposal to eliminate or control the risk of moving plant coming into contact with the powerlines at the Site.

In or about March 2009, as a result of the proposals arising from the consultation and the risk assessment undertaken, the Agrigrain partnership arranged for the erection of metal gantries across the roadway on either side of the overhead power lines on the western side of the premises.

These metal gantries were in effect archways which went across the width of the roadway on either side of the high voltage power lines to prevent moving plant coming into contact with the power lines and to warn the operators of plant of the risk of the power lines.

Over the following 12 months, 8 metal gantries were installed around the premises. This included 3 paired gantries and 2 single gantries. The gantries are designed to ensure that where ever there is a recognised route in the Traffic Management Plant to move equipment under the overhead power line, there is suitable protection from a gantry to prevent any contact between the equipment and the power lines.

...

The installation of these metal gantries was done at a cost of approximately $30,000.00.

Visitors to the site are provided with a 'Visitor Safety Information' document. This document, amongst other things, refers to the existence of overhead powerlines running through both yards and the need for persons operating or towing equipment to always lower it to transport position.

The visitors are also provided with Traffic Flow Plan. This document includes the location of the overhead power lines and the metal gantries under which vehicles and plant must pass through when approaching the overhead powerlines.

...

Agrigrain has therefore put in place various measures to ensure that plant of a certain height cannot leave the yard and therefore cannot travel under the powerlines which were the subject of the Incident.

Indeed, as recently as 2012, the local electricity distribution company Integral Energy has used Agrigrain's systems for ensuring that moving plant do not come into contact with overhead powerlines, as part of its educational publications in the local industry. This includes footage of Agrigrain's gantries in an educational DVD.

39 The fourth major initiative taken by the Agrigrain Partnership was in relation to traffic movements. On 5 March 2009, a consultant provided Agrigrain with a Traffic Management Risk Assessment Proposal. This proposal was accepted by Agrigrain. Mr Ringland stated:

The Transport and Traffic Management Plan specifically addressed issues relating to the safe operation of vehicles around overhead power lines, in particular at Item 15 which is headed 'Overhead Power Lines'.

On or about 6 May 2009, Agrigrain arranged for a meeting with all Yard staff. During this meeting the General Manager, Peter Pritchard informed the Agrigrain employees of the introduction of the Transport and Traffic Management Plan and took them through the contents of the Plan. Copies of the Transport and Traffic Management Plan were provided to Agrigrain employees.

Agrigrain updated its Transport and Traffic Management Plan on 11 October 2011.

...

Agrigrain recently further updated its Transport and Traffic Management Plan in December 2012.

40 Mr Ringland provided detailed information regarding Agrigrain's current systems in relation to workplace health and safety including: the development and implementation of a comprehensive and integrated workplace health and safety system in 2009 that is maintained and implemented by the OHS Officer; a new induction program for permanent employees and contractors, implemented by the Agrigrain Partnership in or about August 2009, which was updated in 2012; an improved system in relation to tool box meetings, which requires each business division to conduct tool box talks for its employees; and competency based training and assessment programs (training manuals) for plant and equipment that are used by employees at the site and before any vehicle or item of plant is operated at the start of each shift - the operator or driver is required to undertake a "Pre-Start Check."

41 Mr Ringland gave evidence of Vinsente's involvement in assisting the local community with financial support and donations to a number of local organisations and not for profit organisations. A number of references were attached to Mr Ringland's affidavit.

42 As to the assistance provided to Mr Elliss, Mr Ringland deposed as follows:

After Mr Elliss's accident, he was taken to Hospital in Sydney for treatment.

Agrigrain assisted in arranging for Mr Ellis's partner and children to visit him in hospital in Sydney. This included arranging the Agrigrain Yard Manager, Ian Rindfleish's partner driving the family to Sydney, in circumstances where Mr Ellis's partner would not fly.

Mr Elliss was offered appropriate rehabilitation and financial support by Agrigrain, in consultation and through its insurer, CGU.

A return to work program was developed for Mr Elliss by the Rehabilitation provider retained for this purpose by CGU, in consultation with Agrigrain. However, Mr Elliss did not complete the program.

Despite being offered the opportunity to return to work with Agrigrain, Mr Elliss has not returned to Agrigrain.

I was aware that the general manager, Mr Peter Pritchard, spoke to Mr Elliss after his return to Trangie. Mr Pritchard spoke to him about returning to work, but Mr Elliss chose not to return and we lost contact, we believe because he left the area without advising where he was relocating to.

43 On the question of remorse and contrition, Mr Ringland stated:

I am genuinely sorry for the Incident that occurred and for the injuries suffered by Mr Elliss.

I am aware that this has had long terms impacts on his physical and mental well being.

I am also aware of the impacts on the family and friends of Mr Elliss arising from the injuries suffered by him.

On behalf of Vinsente and myself I wish to express my contrition and remorse for the failings of the Agrigrain Partnership that exposed Mr Elliss to the risk of the injury on 16 November 2008.

I am committed to ensuring that Agrigrain continues to provide a safe workplace for its employees and other persons who come onto its premises or who interact with various aspects of its business.

Agrigrain is committed to ensuring that the safety of its employees and others who come to our site is paramount.

This incident has reinforced in all of the workforce the need to be vigilant and proactive will all aspects of safety in the workplace.

Evidence for Desiya

44 The evidence for Desiya comprised an affidavit of Peter Pritchard, a Director of that defendant, and a pay advice in respect of Mr Elliss for the pay period ending 16 November 2008.

45 In relation to the Agrigrain Partnership, Mr Pritchard deposed as follows:

In 2007 Desiya entered into a partnership with Vinsente Pty Ltd. The partnership venture was known as Agrigrain (ABN 37 873 867 714).

Desiya Pty Ltd dissolved the Agrigrain partnership as constituted on 30 June 2012.

Desiya executed a share sale agreement with JV Enterprises Pty Ltd, FGMO Pty Ltd and Vinsente Pty Ltd on 30 September 2012, with the effective date of sale being 1 July 2012. Annexed hereto and marked PP1 is a copy of the share sale agreement. Annexed hereto and marked PP2 is the signature page with the executed signatures in relation to the contract at PP1.

On and from 1 July 2012 Desiya Pty Ltd ceased being a partner in Agrigrain.

Desiya no longer undertakes any commercial operations in any industry, including the grain trading and packing industry.

Desiya has no persons subject to either employment contracts or any other form of contract for services.

I resigned from employment with Agrigrain in June 2012. My last day of service with Agrigrain was 30 June 2012.

From around July this year I have not had access to the Agrigrain business as I am not an employee and because Desiya is no longer a partner in the business.

Desiya Pty Ltd will be wound up following judgment in this matter before the Court but will not be wound up until any fines and or costs orders made in this matter are paid and or dealt with to finality.

46 In relation to the training of employees, Mr Pritchard referred to a buddy system. He stated:

Agrigrain utilised a buddy system of training for many of the tasks which needed to be performed by employees. This system involved one employee demonstrating and verbally instructing the other employee how a task should be carried out.

The buddy systems in place did not require documented systems as it was often the case that employees would have little to no literacy skills.

It was often the case that when confronted with written instructions or documents employees whose literacy levels were poor would pretend to have read and understood those matters in writing. To avoid this situation the buddy system was used.

47 In relation to the evidence of Mr Ringland, Mr Pritchard indicated he agreed with the contents of Mr Ringland's affidavit.

48 As to remorse and contrition, Mr Pritchard stated:

In addition to the Ringland affidavit... I say that Desiya and myself are truly sorry for the events which caused the injury to Mr Elliss.

In addition to the matters set out by Mr Ringland I on behalf of the partnership did try and assist Mr Elliss after the incident.

When for example Mr Elliss was not able to attend doctors' appointments I would see to it that new appointment times were set. Also, when Mr Elliss required transport to and from the airport or to and from his local doctor I arranged transport for him. This usually took the form of having an employee of the partnership drive Mr Elliss as and when required.

I also regret not having in place the gantries or bollards which would have prevented this incident occurring. I accept that it is every worker's right to have a safe workplace and I am truly sorry the partnership failed in its obligation to provide such a workplace.

Consideration

Nature of the offending conduct

49 The risk in respect of which the two defendants pleaded guilty was the risk of receiving an electric shock. In particular, Mr Elliss was exposed to the risk whilst operating the self-propelled grain auger close to132kV overhead powerlines at the premises. The risk arose in the following circumstances: on 16 November 2008, Mr Elliss was filling up bunkers with grain using the auger. He received a call to move to another bunker. He attempted to lower the auger but found that the auger would not lower properly. He then called Mr Glase to provide assistance to lower the auger.

50 Mr Glase gave Mr Elliss some instructions and demonstrated how to lower the auger. Mr Elliss said he was satisfied he could proceed to lower the auger and move it. However, after Mr Glase left him, Mr Elliss continued to have problems and could not lower the auger. He did not call on any further help. He felt pressure to move the auger towards the new bunker where grain trucks were waiting to be unloaded.

51 Mr Elliss said he thought that the auger was low enough to pass under the overhead power lines. However, he said once he started moving the auger he "totally forgot the power lines were there". The auger came into contact with the power lines and Mr Elliss suffered electrical burns.

52 The defendants failed in a number of respects to ensure Mr Elliss' safety:

(a) there was a failure to provide the necessary information, instruction and training. For example, there was a failure to provide Mark Elliss with adequate training in relation to the operation of the auger near or beneath overhead powerlines, in particular the requirement that it must remain outside the 2.1 metre approach distance prescribed by the Work Near Overhead Power Lines Code of Practice, 2006;

(b) they failed to undertake, or cause to be undertaken, an adequate risk assessment. For example, there was a failure to adequately identify the risk of operating the auger in close proximity to overhead powerlines without adequate guarding to prevent access of the auger to the area around the overhead powerlines;

(c) they failed to provide the necessary supervision. For example, there was a failure to assign an adequately trained person to supervise Mark Elliss in the use and operation of the auger in close proximity to the powerlines;

(d) they failed to provide a safe system of work. For example, there was a failure to have in place an observer when the auger was to be operated in close proximity to the overhead powerlines; and

(e) they failed to provide a safe working environment. For example, there was a failure to have in place a physical barrier preventing contact by the barrel of the auger with the overhead powerlines.

53 In relation to the failure to provide information, training and instruction it was not as though Mr Elliss had received nothing in that regard. His training included:

the use of augers of a self propelled nature, including in relation to the auger ;

the requirement to lower the boom of augers before moving augers;

that augers were not to travel at more than 10 kilometres per hour;

the location of the overhead power lines at the location of the incident;

the requirement to be careful whilst operating the augers in the location of the powerlines and to keep clear of the overhead powerlines.

54 Additionally, Mr Elliss was provided with further instructions on the day of the incident as to how to operate the controls of the auger by Mr Glase. Further, on the day of the incident Mr Elliss was aware of the need to lower the boom of the auger before moving it. It is also apparent that he had attempted to lower it prior to moving it and had been partially successful in doing so. Assistance was readily available to Mr Elliss if he had sought it.

55 Mr Elliss' inadvertence in knowing about the dangers of the powerlines and then completely forgetting about those dangers and his failure to seek further assistance in lowering the auger, should be taken into account in fixing the sentence in favour of the defendants in the manner described by the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]-[16].

56 Moreover, as counsel for Vinsente submitted, it could not be said that Agrigrain provided no information, training or instruction to Mr Elliss in respect to both the operation of the auger or the location and potential risk of the overhead powerlines. These matters indicate the defendant was clearly conscious of the need for safety and had attempted to address safety issues, which should be taken into account in mitigation.

57 However, notwithstanding the training and instruction that was given, it was inadequate. The same can be said of the working environment. Whilst Agrigrain had in place flag indicators that were installed on the overhead powerlines to act as a visual aid and attract the attention of operators of augers and other high machinery at the premises, it was an inadequate measure. The defendants acknowledged that they should have had better signage in place to warn operators of the presence of the overhead powerlines. Further, the defendants acknowledged that the installation of physical barriers to prevent contact with the boom of the auger should have been implemented.

58 The defendants also acknowledged that greater supervision should have been provided to Mr Elliss in relation to his operation and use of the auger in close proximity to the powerlines to ensure that the boom of the auger was lowered so that it would not come within the "2.1m approach distance" of the overhead powerlines.

59 I have also taken into account in mitigation that this is not a case in which the defendants paid no attention to matters of occupational health and safety prior to the incident. Prior to the incident, the defendants had in place a detailed OHS management system.

60 Despite the mitigating circumstances, it is quite evident that by their failures the defendants exposed Mr Elliss to a very serious risk

Foreseeability of the risk

61 The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [82].

62 The risk of plant such as an auger coming into contact with the overhead powerlines at the premises was foreseeable, indeed known to the defendants, as was the risk that the operator of such plant could suffer an electric shock in those circumstances. The risk was one that was in the contemplation of the defendants and measures, although inadequate, had been put in place to reduce the risk.

Nature of injuries

63 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8. Mr Elliss suffered significant electrical burns to his leg and foot. The injuries could easily have been even more serious.

Existence of simple remedial steps

64 The existence of simple and straightforward remedial steps, which could have been taken by the defendant to avoid risk to safety, is relevant in assessing the seriousness of the offence: see Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited at 27.

65 Having in place such measures as observers, erecting gantries or setting up exclusion zones would have avoided the risk to Mr Elliss' safety. These types of measures were simple and straightforward steps that could have been taken before the incident, but unfortunately appropriate steps were not taken until after Mr Elliss suffered his injuries.

Maximum penalty

66 In the context of considering the objective seriousness of the offence it is necessary to consider the maximum penalty. In Desiya's case it is $550,000. In Vinsente's case it is $825,000, given a prior conviction.

67 As it was stated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [30]-[31]:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick....

Deterrence

68 The Full Bench in Capral Aluminium Ltd v Workcover Authority of New South Wales held that both general and specific deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare..." (at [74]).

69 In respect of general deterrence, the prosecutor submitted there was a need for a significant component for general deterrence to send a strong message to those employers engaged in the agriculture and rural sectors of the ever present risks to health and safety of workers when they are required to work in close proximity to overhead powerlines. The prosecutor contended that the weight applied for general deterrence should be equally shared between Desiya and Vinsente.

70 The defendants accepted that the Court is required to include in its determination of penalty, consideration of the need for general deterrence. It was acknowledged that the objects of the Act and the impact of offences against that Act on the safety of workplaces are relevant considerations in that regard. It is appropriate to include a significant element in the penalty for general deterrence

71 In respect of specific deterrence, the prosecutor acknowledged Desiya no longer trades and is no longer a partner in the Agrigrain Partnership. Nevertheless, it was submitted there is no certainty that Desiya will not, at some future time, re-enter the industry as an employer. Accordingly, there should be some small component for specific deterrence in respect of Desiya to take account of this possibility and further that:

There needs to be a component for specific deterrence to reinforce to the defendants the responsibility to maintain constant vigilance and take all practicable precautions to ensure the safety of its employees. This is particularly so when its employees are required to work in close proximity to overhead powerlines.

72 For the defendants it was submitted, in relation to specific deterrence, the evidence of the changes made to the systems of Agrigrain in relation to the operation and movement of augers since the incident are relevant to an assessment of the risk of the defendants committing a similar offence in the future. Having regard to the measures implemented, it was submitted, the Court would be satisfied that the risk of the defendants committing a similar incident was low. Further, that the defendants' actions reflect a clear commitment to occupational health and safety, and that imposing a penalty that contains both substantial elements of general and specific deterrence may well have the effect of discouraging, rather than encouraging, a positive commitment to occupational health and safety in the industry.

73 The Court is satisfied that the defendants took commendable and effective steps to ensure there would be no recurrence of the incident that caused Mr Elliss' injuries. I accept the defendants' submission that there is a low risk of the defendants re-offending having regard to the specific improvements they implemented to address the subject incident. Moreover, Desiya no longer trades and the evidence was that it will be wound up.

74 Consistent with the Full Bench decision in Capral Aluminium Ltd v Workcover Authority of New South Wales , there will only be a small component in the penalties for specific deterrence. The component for Vinsente will be slightly larger than that for Desiya because it clearly continues to be an employer.

Subjective factors

75 The prosecutor accepted that Desiya entered a plea of guilty at the earliest opportunity and the Court accepts that was the case. The penalty will be discounted by 25 per cent. In respect of Vinsente, the prosecutor submitted Vinsente did not indicate a willingness to plead guilty at the earliest opportunity and is therefore not entitled to the maximum discount. There was some delay in Vinsente entering a plea but the utilitarian value was still substantial. Accordingly, in relation to that defendant, I intend to allow a discount of 22.5 per cent.

76 In relation to contrition and remorse, the Court is satisfied the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been met by both defendants.

77 Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides that a record of prior convictions may be taken into account as an aggravating feature. Vinsente has one prior conviction in New South Wales under occupational health and safety legislation (Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007).

78 How the Court is to approach the question of prior convictions is determined by what was held in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 and Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [25]. Prior criminal record is not to be used as an aggravating factor to increase the objective seriousness of the offence warranting a heavier sentence, but it may be used to "show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen (No 2) at 477-478.

79 The prior conviction related to an incident that involved a forklift being reversed into a worker who was sitting on the ground behind the area where the forklift was being operated. Vinsente submitted that whilst the circumstances of the prior conviction and the facts underpinning it were distinct from the present facts, it acknowledged that the prior conviction of the defendant involved a failure in relation to training and supervision in respect to the use of mobile plant. However, it was submitted that the nature of that offence was not sufficiently similar to the present offence "that retribution, deterrence and protection of society" would require that a more severe sentence was warranted.

80 Whilst I have some reservations, I am prepared to accept that the circumstances of the incident that led to the prior conviction are sufficiently different from the circumstances of the present offence so as to not warrant a more severe sentence because of any continuing disobedient attitude of the defendant to observing the occupational health and safety laws. However, the fact that Vinsente has a prior conviction "disentitles it to leniency normally extended to offenders who are not adversely recorded": Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 at [33]; and Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 at [70].

81 It is accepted there was full co-operation with the investigation by WorkCover Authority of New South Wales by the defendants. It is also accepted that the evidence supports a conclusion the defendants are good corporate citizens. Moreover, I note the Agrigrain business has been operating for nearly 30 years across a large site with 40-50 employees involving the use of large numbers of vehicles, plant and equipment. With only one prior conviction (Vinsente) one may conclude the defendants have taken their health and safety obligations seriously and that it has a relatively good health and safety industrial record.

82 A particular issue that arises in the case is the approach to sentencing defendants who operate a business in partnership. They have been charged with and pleaded guilty to the same offence, in the same terms arising out of the same risk and circumstances, although it should be noted Vinsente is subject to a higher maximum penalty than Desiya. The two defendants are employers and as partners in the Agrigrain Partnership, employed Mr Elliss (and others) as a labourer. The partners were jointly and severally liable for the debts and obligations of the partnership: see s 9 of the Partnership Act 1892.

83 The defendants submitted that in such circumstances it was in the interests of justice that a single penalty be assessed in relation to the breach by the Agrigrain business and that the penalty then be apportioned between the corporate partners of that partnership. To do otherwise, it was submitted, would create a circumstance of inconsistency in punishment between corporations and partnerships.

84 For their submission, the defendants relied on the Full Bench decision in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1. In that case the two appellants operated as partners trading as Tippett's Scrub Hill Pastoral Co. Each had pleaded not guilty to charges under s 8(1) of the Act arising out of an incident in which Mr Anthony Butcher, an employee employed jointly by the appellants in partnership, was injured in the course of operating a potato harvesting machine. The trial judge (Backman J) found the appellants guilty.

85 In her consideration of penalty the trial judge considered a submission advanced by the appellants that the Court should view the offences in a global way. The submissions sought the imposition of a single penalty and each defendant to be sentenced to 50 per cent of the whole. Her Honour rejected this approach, observing that it was inconsistent with the principle determined by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341. Her Honour followed WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd .

86 On appeal, the appellants submitted they ought to be treated together as part of a partnership, rather than separately, to avoid any inconsistency in punishment between corporations and a partnership. To the extent that her Honour relied on the principles determined by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd in the present case, the appellants submitted that her Honour fell into error.

87 On appeal, the Full Bench stated at [89]-[99] and [114]:

[89] The issue therefore for determination in this appeal is whether the principle stated in Big River Timbers should be maintained where a quite different, indeed unusual, position exists factually, namely that there are separate corporations the subject of charges, but the prosecutor concedes that the corporations form part of not just a trading business, but an actual partnership which is the employer. Furthermore, the corporations are facing the same offences and same charges and same particulars in respect of the one incident. In our view, for the reasons that follow, the circumstances of this matter are distinguishable from those found in Big River Timbers because the role of the entity here, which was the employer, was essentially in law, one employer entity.

[90] It was submitted by the appellants that a single penalty should be imposed, with each appellant being sentenced to 50 per cent of the whole. In support of this contention the appellants pointed to the circumstances where the appellants conducted a rural enterprise as one economic unit being a partnership. According to their submission, the partnership engaged employees, including Mr Butcher, for the purposes of the partnership and pursuant to s 9 of the Partnership Act the defendants, as partners, were liable for the debts and obligations of the partnership including the wages due to the employees. The appellants submit that where a defendant is charged pursuant to one section of the Act (s 8(1)) and a charge against another defendant is in identical terms, involving the same factual background, it is appropriate in the interests of justice to view the offence in a global way and to apply a penalty on the partnership as the employer. This approach acknowledges the existence of the partners and imposes upon each a penalty equal to 50 per cent of the whole.

[91] The respondent tendered before the Trial Judge an Australian Business Register, which disclosed that the legal name of the business was JL Tippett Family Trust and RL Tippett Family Trust trading under the name of Tippett's Scub Hill Pastoral Co. Against the words "type of entity" is the description "family partnership". There is one entity with an Australian Business Number. An Historical Business Extract also records Tippett's Scrub Hill Pastoral Co as being registered as a business name on 4 March 1980, describing the nature of the business as "farming". The respondent submitted before the Trial Judge that the two entities were in partnership. Mr Butcher was issued with a group certificate that described his employer as Tippett's Scrub Hill Pastoral Co partnership.

[92] Her Honour applied the principles set down by the Full Bench of this Court in Big River Timbers. We would observe that her Honour was bound to apply Big River Timbers if applicable, thus the question becomes "did the principles in Big River Timbers apply to the circumstances of this matter"? Her Honour found that they did.

[93] In Big River Timbers the Full Bench reviewed the application of the principle of totality by the Court. Briefly stated, Big River Timbers Pty Ltd and Big River Timbers (Veneer) Pty Ltd were involved in the manufacture of plywood and flooring. Big River Timbers Pty Ltd controlled the business activities and owned the relevant plant. Big River Timbers (Veneer) Pty Ltd operated an employment company for the veneer and engineering divisions, which included an employee who suffered crush injuries. The respective companies were charged pursuant to s 8(1) and s 8(2) of the Act respectively. At first instance, the two corporate defendants were treated as one entity for the purpose of sentencing, because they were as the Chief Industrial Magistrate ("CIM") had observed "interlocked" which the Full Bench understood the CIM to mean that the respondents were closely related corporate entities having a common governance and operation.

[94] The Full Bench referred to an earlier judgment of a Full Bench in Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149. The Court in Haynes considered the appropriate approach to penalty where two related companies, namely, in CI & D Manufacturing Pty Ltd (Manufacturing) and CI & D (Industries) were charged respectively under s 15 and s 16 of the Act in relation to an accident resulting in the death of an employee. The Court came to the view, on the evidence, that the connection between the two companies were so intimate that it was permissible to view the offence in a global way. The Court imposed a total fine and determined that each company should bear 50 per cent of the total fine. The Full Bench in Big River Timbers specifically rejected this approach as wrong and overruled Haynes.

[95] The Full Bench then adopted and applied the principles set out in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383, where Walton J Vice-President (at 456), rejected the application of the totality principle, where different corporate entities faced separate charges. Walton J rejected the defendant's submissions that a franchisor and lessor ought to be treated as one for the purpose of sentencing, observing that totality presupposes a single defendant charged with multiple offences as a condition precedent to determining a measure of criminality.

[96] There has been no case before the Court where there has been a corporate, or non corporate partnership, as is the case here. In McDonalds one of the corporations was responsible for the organisational arrangements of the business and an associated corporation responsible for the finance and management of the business. The net effect was that there were two separate corporations having a close relationship based on certain factors, but different in that the corporations were carrying out different functions. The reality was that there were separate incorporations that were the subject of different offences under different provisions of the 1983 Act.

[97] The appellants submitted that a global approach was adopted by O'Loughlin J in Trade Practices Commission v Cue Design Pty Ltd. As the trial judge observed, that decision involved multiple charges against the same defendant, as well as charges against a second defendant. O'Loughlin J found that the gravamen of each count against each defendant was the same, and, the defendants were part of the same corporate group. One defendant was the manufacturer, designer and wholesaler of women's garments. The other defendant retailed the garments. The offences involved attaching price tags to garments displayed in stores bearing higher prices crossed out and lower prices written below, when the garments had not been previously offered for sale at the higher price. O'Loughlin J held at 508:

I also am of the opinion that it is appropriate to deal with this matter as if there had been one offender but to acknowledge the existence of the two defendants by imposing upon each a penalty equal to 50 per cent of the whole. In reality, what happened was the implementation of one sales strategy by one business house. It would be unfair to impose a multiplication of penalties because of the number of outlets or the number of the companies in the group.

[98] The trial judge rejected the approach of O'Loughlin J in the light of her conclusions as to Big River Timbers. It is unnecessary for us to rule upon the question raised in that respect because of the conclusions that we have reached as to the proper disposition of this aspect of the appeal.

[99] Although the defendants have been found guilty of the same offence that was in the same terms and arose out of the same circumstances, their offences relate to corporate co-offenders who are in a partnership that is the employer. There is, therefore, a critical factual difference to that found to exist in Big River Timbers: in this case, the issue of totality does not arise because, as a result of the partnership, there is but one employer entity in law. We propose to proceed to sentence on this basis.

...

[114] We have considered all of the circumstances of the case, including the seriousness of the offence, and have taken into account the mitigating factors identified in the evidence. The maximum penalty for the offence is $550,000. Having regard to the objective seriousness of the offence and all the circumstances, we consider that an appropriate penalty is $80,000 with each defendant paying 50 per cent of this amount.

88 The prosecutor submitted that, in respect of assessing each of the defendants, one needed to look at their respective culpability for the offence and, in this case, that it was equal; that their culpability as an employer through the partnership was equal. JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales was cited as authority for this proposition.

89 However, it was submitted by the prosecutor the principle of parity, which was not in issue in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales , applied in the present case and that principle did not require equal sentences where there existed differences between the defendants that warranted a different approach; where there were relevant differences, due allowance should be made for them. The differences, the prosecutor submitted were that:

(a) Vinsente had a prior conviction whereas Desiya did not;

(b) Desiya entered a plea at the earliest opportunity whereas Vinsente did not; and

(c) On and from 1 July 2012 Desiya ceased being a partner in Agrigrain; Desiya no longer undertakes any commercial operations in any industry, including the grain trading and packing industry; Desiya will be wound up following judgment in this matter. This is relevant to specific deterrence.

90 The prosecutor referred to Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ, at 309 per McHugh J and at 325 per Gummow J and what was there said regarding parity. It is sufficient to refer to what Dawson and Gaudron JJ said (footnote omitted):

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.

91 I do not cavil with JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales , but I would observe that it is not the partnership that is being prosecuted; it is the two employers who are the partners. Each has been charged with a separate offence and in the proceedings were represented by two different counsel. Moreover, unlike JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales the maximum penalties in this case are different: $550,000 for Desiya as opposed to $825,000 for Vinsente. In those circumstances, I do not see how the Court is able to determine a global penalty where the range in which to fix the penalties is different. This is especially so in the absence of any submissions that the difference in maximum penalties is or is not a relevant consideration. I should think it is a significant consideration given the decision in Markarian v The Queen.

92 Furthermore, JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales did not identify any relevant differences between the corporate entities that made up the partnership. It was implicit in the Full Bench's decision that culpability was regarded as the same between the two defendants and, in the absence of any relevant differences, that the defendants should receive the same fine, albeit based on a "global" approach to sentencing, with an amount being determined in respect of the overall culpability of the two defendants and that amount being split evenly between the two.

93 Given these differences I would, therefore, distinguish JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales .

94 It was not in issue that the two defendants, Vinsente and Desiya, were charged with and pleaded guilty to the same offence, in the same terms arising out of the same risk and circumstances. I do not understand the defendants to have submitted that between them there were different degrees of culpability; they were equally culpable. In those circumstances, I do not see how I am able to fine the defendants according to a formula, derived from the Partnership Agreement (the 80/20 split), that has nothing to do with culpability.

95 Moreover, as the prosecutor submitted, there are different sentencing considerations applying to the defendants that cannot be overlooked in favour of applying the asset ratio in the Partnership Agreement.

96 In my opinion, the fact that the defendants are equally culpable would suggest that the fines should be the same. However, when one has regard to the differentiating factors referred to by the prosecutor the penalty to be applied to Vinsente should be higher than that for Desiya.

97 As I earlier noted, the prosecutor identified three differences in the matters the Court is required to consider in sentencing the defendants: prior conviction of Vinsente (disentitled to the leniency normally extended to offenders who are not adversely recorded and higher maximum penalty); difference in discounts for guilty plea; and specific deterrence. The appropriate penalty in respect of Vinsente is $90,000 and in respect of Desiya is $60,000.

Orders

98 The Court makes the following orders:

Matter No IRC 1275 of 2010 - Desiya Pty Ltd

(1) The defendant is convicted of the offence.

(2) The defendant is fined an amount of $60,000 with a moiety to the prosecutor.

Matter No IRC 1277 of 2010 - Vinsente Pty Ltd

(3) The defendant is convicted of the offence.

(4) The defendant is fined an amount of $90,000 with a moiety to the prosecutor.

99 The Court further orders that the defendants shall jointly and severally pay the prosecutor's costs in an amount as agreed or assessed.

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Decision last updated: 13 February 2013