Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Nicholson v Gallagher [2012] NSWIRComm 121
• Hearing dates: 15 August 2012
• Decision date: 09 November 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 $10,000 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 went into voluntary liquidation after incident - risk of injury by coming into contact with dangerous moving parts of conveyor machine at waste recycling and disposal plant - employees required to transit in close proximity to conveyors - conveyor unguarded on day of incident - young and inexperienced worker exposed to risk - inadequate supervision - worker became entangled in conveyor - serious injury suffered - plea of guilty - sentencing - objective factors - maximum penalty - risk was foreseeable - systems in place prior to incident inadequate - simple remedial measures available - general and specific deterrence - culpability of defendant - defendant "hands on" manager - no aggravating factors - mitigating factors - offence serious - subjective factors - remorse and contrition - assistance to injured worker - impact on defendant - co-operation with prosecutor - discount for plea - first offence - consideration of s 6 of the Fines Act 1996 and the defendant's capacity to pay - discretion exercised to reduce penalty under Fines Act - strength of financial evidence before the Court affected by absence financial material - some reduction in penalty by virtue of mitigating and subjective factors - 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; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29; Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159; Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8; Environmental Protection Authority v N (1992) 26 NSWLR 352; Ferguson v Nelmac Pty Limited (1999) 92 IR 188; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Estreich v Hadfield [2012] NSWIRComm 88; 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 Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49; Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992; Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125; Inspector Jelley v Lanza Management Pty Ltd and Guiliano Lanza [2008] NSWIRComm 125; Inspector Jones v Challita and Anor [2006] NSWIRComm 207; (2006) 153 IR 409; Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78; Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210; Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47; Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82; Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136; Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114; Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96; 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; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337; Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; (2005) 215 ALR 213; 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; (2000) 99 IR 163; R v Dib [2003] NSWCCA 117; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210; R v Rushby (1997) 1 NSWLR 594; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.; Rahme v R (1989) 43 A Crim R 81; Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510; Retsos v Regina [2006] NSWCCA 85; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364; 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 Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284; WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21; WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363
• Category: Principal judgment
• Parties: Inspector Sarah Nicholson (Prosecutor); Danial Gallagher (Defendant)
• Representation: Ms S Gul of counsel (Prosecutor); Ms B Obradovic of counsel (Defendant); WorkCover Authority of New South Wales (Prosecutor); Pagano Burlovich Lawyers (Defendant)
• File Number(s): IRC 713 of 2011

Judgment

1 These proceedings involve a prosecution instituted by Inspector Sarah Nicholson ("the prosecutor") against Danial Gallagher ("the defendant"). Inspector Nicholson is an inspector of the WorkCover Authority of New South Wales and is empowered by s 106(1)(c) of the Occupational Health and Safety Act 2000 ("the Act") to institute proceedings.

2 The defendant was, at the date specified in the charge, the sole director and general manager of Orange Waste Bins Pty Ltd ("Orange" or "the corporation"), a corporation whose registered office was situated at 79A Gow Street, Padstow in the State of New South Wales. Orange conducted its business at premises located at 5 Ladbroke Street, Milperra in the State of New South Wales ("the premises") and was an employer. The corporation provided a waste disposal and recycling service which undertook the business of delivering and collecting skip bins, and recycling non hazardous waste. Orange was placed into voluntary liquidation on 7 December 2011. The defendant is currently unemployed.

3 This prosecution arose following an incident at the premises on 17 July 2009 involving an employee of Orange, David William Finnimore.

4 Mr Finnimore had worked at Orange between October 2008 and June 2009 as a business administration trainee whilst employed by Macarthur Group Training Pty Ltd, a company that employs apprentices and trainees and places them with host employers. Whilst in that role, Mr Finnimore would, from time to time, perform labouring duties at Orange after his administration duties were complete on a given day.

5 In June 2009, approximately one month prior to the incident, Mr Finnimore was engaged by Orange as a labourer. In his labouring role at that time, Mr Finnimore performed general duties which included sorting materials and disposing of waste. Mr Finnimore was also undertaking training in all operational tasks of the company. Mr Finnimore was 19 years of age at the date of the incident.

6 At the time of the incident, the premises included machinery in the form of a conveyor system known as the "Trommel". The Trommel was a machine which had been commissioned from Thomas Trommels, a manufacturer of plant for the waste industry. The Trommel consisted of three conveyors. Waste was graded on the first conveyor prior to moving to a sorting conveyor, also known as the "picking line", then on to the third conveyor which was elevated. The elevated conveyor was approximately six metres long and sat at an angle of approximately 30 degrees to the floor, with the tail roller of the conveyor approximately 0.9 metres from the floor. An emergency stop button was located approximately 0.8 metres to the left of the tail roller. The elevated conveyor was situated on the left hand side of the Trommel.

7 When working on the picking line, workers would stand at stations some metres away from the elevated conveyor from where they would pick out recyclable material from the waste. All remaining materials continued on the elevated conveyor to be dumped into a "spoil" pile.

8 The picking line was accessed by workers via either of two short sets of stairs, one located immediately adjacent to the tail roller side of the elevated conveyor and the other located on the opposite side. A narrow path, which gave workers access to an outdoor amenities area and emergency muster point, was situated to the side of the elevated conveyor.

9 On the day of the incident, Mr Finnimore was rostered to work on the picking line. Also present at the premises that day were the defendant, Mick Vlastos, a supervisor employed by Orange, and Phil McGregor, a labourer.

10 At approximately 6.15am, Mr Finnimore made his way from the floor of the premises to the picking line via the set of stairs situated adjacent to the tail roller of the elevated conveyor. At that stage, the Trommel was already running, having been switched on earlier that morning by Mr McGregor for the purpose of warming up the conveyor belts.

11 Having ascended the stairs adjacent to the elevated roller, Mr Finnimore recounted hearing his name called from the floor of the premises. Upon hearing his name, Mr Finnimore turned and commenced to descend the stairs so that he was partially facing towards the conveyor. At the same moment, Mr Finnimore flicked his right sleeve down and, as he did so, his sleeve became entangled in the tail roller of the elevated conveyor. As a result, Mr Finnimore's right arm was pulled into the roller and was severed.

12 Upon hearing Mr Finnimore's yells, the defendant activated the Trommel's emergency stop button, which immediately stopped the elevated conveyor, and isolated the conveyor with an isolation switch. The defendant then positioned himself behind Mr Finnimore to support his weight, and held a towel inside his chest cavity in order to stem the flow of blood. At the same time, the defendant provided information over the phone to emergency services operators. After emergency services had arrived at the premises, the defendant continued to support the weight of Mr Finnimore whilst first aid was applied, and also retrieved Mr Finnimore's arm from the conveyor and passed it to the surgeon who had attended the scene.

13 Mr Finnimore suffered injuries, as a result of the incident, which included fractured ribs, skin grafts, pressure sores and intubation behind the lungs to drain fluid. He incurred scarring from his ankle to his knee which was caused by the removal of a vein, used in an attempt to reattach his arm. Attempts to reattach Mr Finnimore's arm were unsuccessful. In addition, Mr Finnimore suffered and continues to suffer phantom limb pain.

14 At the time of the incident, the tail roller of the elevated conveyor in which Mr Finnimore became entangled was unguarded. As will be discussed below, the evidence in the proceedings only permits a conclusion that the guarding was absent on the day of the incident.

15 Immediately after the incident, guarding on the elevated conveyor was replaced, and access to the stairs adjacent to that conveyor was restricted by way of a gate. Fencing was implemented around the Trommel. A new written procedure in respect of the operation of the Trommel was implemented by the defendant.

16 On 20 July 2009, eight improvement notices were served by the WorkCover Authority on Orange in relation to guarding and unguarded nip points, isolation devices, emergency stops, falling objects and slip and fall risks. There was also a requirement that signs be attached to identify parts of the Trommel and provide manufacturer information and information on safe working loads. Orange had complied with all improvement notices by 6 August 2009.

17 In September 2009, Orange moved to larger premises at Padstow, and the layout of the conveyor system was reconfigured. In October 2009, five further improvement notices were served on Orange by the WorkCover Authority in relation to guarding, safe systems of work and safe egress. All notices were complied with by Orange. At the Padstow location, the layout of the Trommel was reconfigured and the guarding was refitted to the elevated conveyor. A new isolation switch was also added to the switchboard, and fencing was put in place around the perimeter of the Trommel to restrict access by unauthorised persons.

18 On 7 December 2011, as previously noted, Orange was placed into voluntary liquidation. The business was bought from the liquidators by 79A Gow Street Pty Limited in around December 2011 or January 2012. The defendant was an employee of that company for a short time, but resigned in March 2012.

19 The charge brought against the defendant will be described in more detail below. The defendant was charged in his capacity as a director of Orange. 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.

20 The risk specified in the charge was the risk to employees of Orange, in particular Mr Finnimore, of being injured by coming into contact with the dangerous moving parts of the elevated conveyor at the premises.

21 The failures of the defendant particularised concerned, variously, a failure to ensure there was a safe system of work for the operation of the Trommel, a failure to ensure the elevated conveyor was adequately guarded, a failure to undertake any formal risk assessment for the operation of the elevated conveyor including the removal and reinstatement of guarding, and a failure to provide proper supervision to employees.

The Charges

22 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 an amended application for order in the following terms:

I, Inspector Sarah Nicholson, of the WorkCover Authority of New South Wales, Level 4, 128 Marsden Street, Parramatta, 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 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter allege that Danial Gallagher of 5 Ladbroke Street, Milperra in the State of New South Wales ("the defendant") a director of a corporation, Orange Waste Bins Pty Ltd (ACN 107 738 330) whose registered office is situated at 79A Gow Street, Padstow in the State of New South Wales ("the corporation"), by virtue of section 26(1) of the Act is taken to have contravened section 8(1) of the Act in that the corporation, being an employer, on 17 July 2009, at 5 Ladbroke Street, Milperra, in the State of New South Wales ("the premises")

FAILED TO,

by its acts or omissions as particularised below, ensure the health, safety and welfare at work of all its employees and in particular, David Finnimore, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

23 The particulars of the charge were specified as follows:

a) At all material times the defendant was a director of the corporation.

b) The risk was the risk of employees of the corporation, in particular David Finnimore, being injured by coming into contact with the dangerous moving parts of an operating elevated conveyor, which was part of a conveyor system consisting of three conveyors, located at the premises.

c) The corporation failed to ensure there was a safe system of work for the operation of the conveyor system at the premises. Specifically, the corporation failed to take the following measures:

i. Create and adhere to a formal safe operating procedure for the conveyor system;

ii. Ensure that a requirement of any pre-operational visual inspection of the conveyor system was to confirm that all guarding was present and secure on the elevated conveyor;

iii. Prohibit the operation of the elevated conveyor when guarding was not in place;

iv. Prohibit access to the operational elevated conveyor when guarding was not in place;

v. Create and adhere to a safe operating procedure for the removal and re-instatement of guarding on the elevated conveyor.

d) The corporation failed to ensure that the elevated conveyor was adequately guarded. Specifically, the corporation failed to take the following measures:

i. Ensure that appropriate guarding was in place to prevent access to the dangerous moving parts of the elevated conveyor, including ensuring that guarding was in place to prevent access to the tail roller of the conveyor;

ii. Provide a sufficient alternative form of guarding around the dangerous moving parts of the elevated conveyor, such as fencing;

iii. Ensure that any guarding which had been removed was re-instated in order to avoid any risk of employees coming into contact with the dangerous moving parts of the elevated conveyor.

e) The corporation failed to undertake any formal risk assessment for the operation of the elevated conveyor, including the removal and re instatement of guarding

f) The corporation failed to provide proper supervision to employees. Specifically the corporation failed to take the following measures:

(i) Ensure that David Finnimore's supervision arrangements were clearly stated;

(i) Ensure that David Finnimore's supervisor was aware of where David Finnimore was working.

As a result of the corporation's failures and omissions, employees and in particular, David Finnimore, were placed at risk of injury.

Statement of Agreed Facts

24 The prosecutor tendered a document described as a "Statement of Agreed Facts". That document, admitted into evidence, was in the following terms:

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

2. At all material times Orange Waste Bins Pty Ltd (ACN 107 738 330) was a corporation whose registered office is situated at 79A Gow Street, Padstow in the State of New South Wales ("Orange Waste Bins").

3. At all material times Danial Gallagher of 5 Ladbroke Street, Milperra in the State of New South Wales was the Director and the General Manager of Orange Waste Bins ("Mr Gallagher").

4. At all material times Orange Waste Bins conducted its business at premises located at 5 Ladbroke Street, Milperra in the State of New South Wales and was an employer.

Background

5. At all material times Orange Waste Bins was a corporation which undertook the business of delivering and collecting skip bins, and recycling non hazardous waste. Orange Waste Bins was registered with ASIC on 23 January 2004.

6. At all material times Mr Gallagher was the sole Director and General Manager of Orange Waste Bins and was responsible for the overall running of the business. Mr Gallagher attended the premises on a daily basis and had a 'hands on' role in the running of the company.

7 Between October 2008 and June 2009 Mr Finnimore worked at Orange Waste Bins a business administration trainee whilst employed by Macarthur Group Training Pty Ltd, a company that employs apprentices and trainees and places them with host employers. During the period of his employment with Macarthur Group Training Pty Ltd Mr Finnimore from time to time, performed labouring duties at Orange Waste Bins, after his administration duties were complete on any given day.

8. In June 2009, Orange Waste Bins employed Mr David Finnimore ("Mr Finnimore") as a general hand/labourer.

9. In June 2009 when Mr Finnimore commenced working for Orange Waste Bins as a labourer his general duties included sorting materials and disposing of waste, as well as being trained in all operational tasks of the company.

10. At the relevant time, Orange Waste Bins employed Mr Phil McGregor ("Mr McGregor") as a labourer and his duties consisted of sorting waste, undertaking repairs on bins and undertaking maintenance and repairs on the conveyors. Mr McGregor commenced his employment with Orange Waste Bins in 2005.

11. Orange Waste Bins employed Mr Mick Vlastos ("Mr Vlastos") as a supervisor. Mr Vlastos commenced work on either 13 or 14 July 2009, approximately four days before the incident. At the commencement of his employment with Orange Waste Bins, Mr Vlastos had over 10 years experience in the industry. Mr Vlastos' role with Orange Waste Bins included supervising staff and operations and maintenance of machinery and operations.

12. There was a piece of plant at the Orange Waste Bins premises known colloquially amongst employees as the "trommel", manufactured by Thomas Trommels, serial number OBTCCV04. The trommel was a conveyor system consisting of three conveyors, the final conveyor being an elevated conveyor, being on the left hand side of the machine. The waste was graded on the first conveyor prior to moving to a sorting conveyor, also known as the "picking line", then on to the elevated conveyor.

13. There was a narrow path on the side of the elevated conveyor which gave workers access to an outdoor amenities area and emergency muster point. Access to the picking line could be from either side. It could be accessed either via a short set of steps immediately adjacent to the tail roller side of elevated conveyor, or a short set of steps on the opposite side.

14. The elevated conveyor was approximately 6 metres long and sat at an angle of approximately 30 degrees to the floor, with the tail roller of the conveyor approximately 0.9m from the floor. An emergency stop button was located approximately 0.8 metres to the left of the tail roller. The tail roller was usually guarded with a yellow machine guard, however on the date of the incident the guard was not present.

15. Workers on the picking line stood at their stations some metres away from the elevated conveyor and picked recyclable material from the waste. The remaining materials continued on the elevated conveyor where they were dumped into a 'spoil' pile.

16. A contractor, Mr Robert Smith from Fairgo Belt Service, had installed a new belt in two of the conveyors including the elevated conveyor at the premises approximately four weeks prior to the incident and told Mr McGregor to run the belt prior to use to warm it up. The date on the invoice for the installation of the belts on CV2 and CV3 was 16 June 2009.

Incident

17. On 17 July 2009 Mr McGregor commenced work and firstly made sure the machines were greased and serviced. He then tipped some bins on the floor of the factory and sorted out some bricks from the rubbish. He then started up the conveyor in order to warm up the belts. After Mr McGregor had turned on the conveyor he went back to the task of sorting bricks and putting them in a bobcat.

18. Mr Finnimore arrived at work at approximately 5:55am. It was usual for Mr Finnimore to conduct his duties according to a timetable sheet which listed his working hours, tasks and break times. Mr Gallager had previously provided Mr Finnimore with this timetable sheet.

19. Mr Finnimore and Mr McGregor were working on the floor of the factory immediately prior to the incident.

20. Mr Gallagher and Mr Vlastos were at the premises by approximately 6am. Mr Gallagher had seen both Mr Finnimore and Mr McGregor, and was immediately outside the factory talking with Mr Vlastos shortly after 6am.

21. Mr Finnimore was rostered to work on the picking line that day. At approximately 6.15am Mr Finnimore headed towards the picking line via the steps adjacent to the tail roller of the elevated conveyor.

22. As Mr Finnimore approached the steps to the picking line at the tail roller end, the elevated conveyor was already in operation. By his account, he heard his name being called from the factory floor. He turned around and commenced to descend the steps so that he was partially facing towards the conveyor. At this point he flicked his right sleeve down and it became immediately entangled in the unguarded tail roller.

23. Mr Vlastos and Mr Gallagher heard a clang of metal, followed by Mr Finnimore yelling. They ran to the conveyor, Mr Gallagher pressed the emergency stop button near Mr Finnimore, immediate stopping the elevated conveyor and isolated the conveyor with the isolation switch. Mr Gallagher called the emergency services and applied first aid on Mr Finnimore until the ambulance arrived.

Injuries

24. Mr Finnimore suffered injuries including a disarticulated right arm, fractured ribs, phantom limb pain, skin grafts, pressure sores and intubation behind the lungs to drain fluid. Mr Finnimore also suffered scarring from ankle to knee that was incurred during the removal of a vein, which was used to attempt to reattach his right arm. Attempts to reattach Mr Finnimore's right arm were unsuccessful.

25. Mr Finnimore returned to work at Orange Waste Bins in January 2010 in an administrative role, however resigned his position at the end of April 2010.

Systems Prior

26. The system in place since 2004 consisted of pre operational visual inspection of the conveyors, although these inspections were not recorded. The pre operational check on the date of the incident did not identify that the guard for the elevated conveyor had been removed.

27. There were no documented safe work procedures relating to the safe operation of the conveyor system.

28. There were no documented risk assessments conducted on the operation of the conveyor system.

29. Whilst Orange Waste Bins provided training to employees and employees were visually assessed for competency in relation to operating and working with plant at the premises, neither the training nor assessments were documented. Mr Finnimore was unsure of who his supervisor was on the date of the incident. Neither Mr Vlastos or Mr McGregor were unaware of where Mr Finnimore was at the time of the incident.

30. The conveyors at the premises were fitted with guarding that could be removed with a general tool, such as a spanner, shifter or socket. Tools were located in the tool room, which was always accessible to employees. Guarding was required to be removed when belts were changed.

31. The elevated conveyor was unguarded at the time of the incident. No witnesses were able to attest as to when, exactly, the guard was removed, whether it was ever replaced after the belts were replaced, or how long it had been absent.

32. The emergency stop button for the elevated conveyor was within reach of Mr Finnimore at the time of the incident.

Systems Following

33. Immediately after the incident, the guarding on the elevated conveyor was replaced, and access to the stairs near the elevated conveyor was restricted by way of a gate using fencing around the trommel.

34. Immediately after the incident but no later than 20 July 2009, Mr Gallagher reviewed the procedure for operation of the plant at the premises and applied a written procedure in respect of such operation.

35. On 20 July 2009 Inspector Wright served eight improvement notices on Orange Waste Bins in relation to guarding and unguarded nip points, isolation devices, emergency stops, falling objects, slip and fall risks. There was also a requirement that signs be attached to identify parts of the machine, and provide manufacturer information and information on safe working loads.

36. On 3 August 2009 Inspector Wright attended the Orange Waste Bins premises to check compliance with the improvement notices issued. By this date Orange Waste Bins complied with the majority of the improvement notices.

37. On 6 August 2009 Inspector Wright attended the premises and observed that metal signs had been placed over the main control board switches that operated the conveyor system. in compliance with an improvement notice issued on 20 July 2009. By this date Orange Waste Bins complied with all improvement notices.

38. In September 2009 Orange Waste Bins moved to larger premises at Padstow and the layout of the conveyor system was reconfigured.

39. In October 2009 Inspector Tan issued five improvement notices on Orange Waste Bins at the new premises in relation to guarding, safe systems of work and safe egress. Orange Waste Bins complied with all notices issued. Orange Waste Bins refitted the guarding to the elevated conveyor and a new isolation switch has also been added to the switchboard. Fencing was put in place around the perimeter of the conveyor system to restrict access to unauthorised persons.

40. Orange Waste Bins have revised their OHS system and developed formal documented safe work procedures. An employee induction handbook was developed in relation to machinery used at the premises. All new employees are required to undergo a theoretical and practical assessment in relation to all plant at the premises.

41. Orange Waste Bins have an employee consultation mechanism in place, which includes minuted fortnightly tool box meetings. There is a notice board where safety information notices are placed.

42. Orange Waste Bins have 32 cameras located at the new premises at Padstow that allows the office staff to randomly view the cameras and observe that employees are working in a safe manner.

43. On 7 December 2011 Orange Waste Bins was placed into voluntary liquidation.

PRIOR CONVICTIONS

44. The defendant has no prior convictions.

Verdict

25 Having regard to the charge in this matter, the particulars of the offence, the statement of agreed 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 entered by the defendant and will enter a verdict accordingly.

Evidence

26 The prosecutor tendered a sentencing bundle containing: an amended application for order filed 30 April 2012; a statement of agreed facts filed 13 August 2012 (as noted above); a WorkCover Prior Conviction Report for Orange Waste Bins Pty Ltd and Danial Gallagher each dated 17 May 2011 (there being no recorded prior offences for Orange or the defendant); 11 colour photographs taken by Inspector Michael Wright dated 17 July 2009; 9 colour photographs taken by Inspector Javier Reyes dated 20 October 2009 and a WorkCover Authority of New South Wales Factual Investigation Report of Inspector Michael Wright dated 13 August 2009.

27 A Victim Impact Statement signed by Mr Finnimore, dated 15 August 2012, was also handed to the Court.

28 Ms B Obradovic of counsel, for the defendant, relied upon the affidavit evidence of the defendant sworn 10 August 2012 (paragraphs 27, 28 and 29 were struck). Some relevant paragraphs of the affidavit are as follows:

...

16. I was in the middle of a conversation with Mick who was the foreman when I heard a scream. Upon hearing the scream I ran to where David was located and observed that he was caught in the section of the Trommell which is known as the elevated conveyor. I immediately hit the red stop button which was in easy reach. This had the effect of stopping the elevated conveyor. I then yelled at Mick to call 000.

17. I then positioned myself behind David and supported his weight. At this point I observed that David was losing a large amount of blood and as a result I applied pressure to his chest cavity so as to stem the flow of blood, this involved causing a towel to be inserted into David's chest cavity which I held there until the arrival of emergency services.

...

19. Whilst I was assisting David, Mick called emergency services, under my instruction, I recall that whilst I was supporting David including applying pressure to his chest cavity, Mick passed to me his mobile phone which I recall holding between my head and shoulder and provided the operator with all information which was requested regarding David's circumstances.

20. I continued to assist David and emergency services upon their arrival. I remained behind David whilst they commenced rendering aid, further I passed David's arm over the top of myself and David to the surgeon who had attended the accident scene.

21. Following the accident I provided ongoing support to David, including but not limited to financial support, purchase of a laptop and retraining.

...

30. I am married and have four children aged between 9 and 2. My wife is a full time mother and house wife.

31. Up until March 2012 I was the sole bread winner and supported my family.

32. In March 2012 I resigned from 79A Gow Street Pty Limited ("79A")

33. 79A purchased the business operated by OWB from the Liquidators in December 2011 / January 2012. I agreed to remain an employee of 79A, however I resigned in March 2012.

34. As a result of my resignation I am currently unemployed and my family and I are being financially supported by our immediate family and by drawing against the equity in the property which I own jointly with my wife Catherine.

35. I understand that the matrimonial home which I own jointly with my wife Catherine may be valued between $550,000.00 and $600,000.00. The property is subject to a mortgage of about $400,000.00.

36. The monthly living expenses which Catherine and I have total approximately $6,000.00, this includes:-

(a) mortgage,

(b) school fees and extracurricular activities for the children,

(c) utilities; and

(d) groceries, etc.

37. As a result of the above I have minimal means to pay any fine which may ultimately be imposed on me by this Honourable Court.

...

40. In about November / December 2011 I hit an all time low, I was diagnosed by my general practitioner a suffering from severe depression. I was subsequently prescribed Moxon which I continue to take and I was referred to a Psychiatrist by the name of Dr, Yeoh.

...

44. I acknowledge and regret the injuries sustained by David each day. I am also conscious of what David may be going through as a result of the injuries he has sustained.

Victim Impact Statement

29 The Court received a Victim Impact Statement signed by Mr Finnimore. There was no objection to the Statement. The Court acknowledges its receipt.

30 Whilst I am unable to take into account the Statement in determining penalty (Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80]), I acknowledge the effect the incident has had upon Mr Finnimore. It is evident that the incident and resulting injuries have caused and continue to cause Mr Finnimore an enormous amount of pain and suffering. It is likely that he will continue to suffer those consequences for some time. It is clear from the Statement that the incident has affected Mr Finnimore's ability to undertake everyday activities including walking, driving, washing and participating in social situations, and has left him anxious about his future.

31 I acknowledge the presence of Mr Finnimore's parents in Court during the sentencing hearing, and am comforted by the knowledge that the family will continue to provide support to Mr Finnimore as he continues to recover from what was a traumatic experience resulting in very serious injuries. The Court extends its deepest sympathy to this young man.

Submissions

Submissions for the Prosecution

32 Ms S Gul of counsel, who appeared on behalf of the prosecutor, made oral and written submissions which, taken together, are summarised as follows:

Objective Factors

(1) The principles relevant to sentencing for offences under the Act are well established: Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 ("Cross City Tunnel"). The general principles relevant to sentencing for criminal offences are contained within s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act").

(2) The Court must first, and primarily, consider the objective seriousness of the offence in determining penalty: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474.

(3) The Court must assess whether the risk of harm was conceivably foreseeable to the reasonable person in the position of the defendant, and not whether the defendant subjectively foresaw the risk: Environmental Protection Authority v N (1992) 26 NSWLR 352 at 358 - 359; Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 at [9].

(4) The risk in the present matter was foreseeable: the elevated conveyor had been unguarded for an uncertain period of time; access steps were located immediately adjacent to the unguarded tail roller and possessed no barrier to restrict access; there was a path next to the unguarded tail roller leading to an outdoor area; pre-operational visual inspections of the conveyor were conducted but not recorded, and, on the day of the incident, did not detect that the guard was missing; no safe work procedures or risk assessments were documented for the use of the conveyor system; no training or competency assessment for work on the conveyor system was recorded or documented for Mr Finnimore; and, supervision arrangements were unclear.

(5) It was conceded by the prosecutor that whilst the guarding for the tail roller of the elevated conveyor was not affixed at the time of the incident, no inference could be drawn about how long before the incident or in what circumstances it was removed; it had been unguarded for an unknown period of time. The only certainty was that it was unguarded on the day of the incident.

(6) The Court must consider the gravity of the risk and the availability and feasibility of measures to eliminate or control the risk: Lawrenson Diecasting at 476.

(7) Feasible measures which would have controlled or eliminated the risk were available to Orange. The presence of the guard would have eliminated the risk. Access and egress past the unguarded conveyor could have been prohibited in order to control the risk. The remedial steps taken by Orange after the incident highlight the steps which could and should have been taken to prevent the risk manifesting in injury.

(8) Whilst the fact that injury occurred does not automatically dictate the seriousness of the offence, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such circumstances, the occurrence of serious injury may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94] - [95]; WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383 at 428; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [31] - [33]. In the present case, the risk carried the potential for a serious outcome which was ultimately manifested in the serious injury of Mr Finnimore.

(9) It was acknowledged that the culpability of a personal defendant can be no greater than that of the corporate defendant. In this case there were no proceedings against the corporate defendant as it was in liquidation. The prosecutor submitted that, in assessing the appropriate penalty to be placed on the personal defendant, consideration should be given to the role of the defendant in the management of Orange and the gravity of the offence as identified in relation to the corporate defendant: Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163.

(10) The defendant was a "hands on" manager of Orange involved in the running of the company and attended the premises on a daily basis.

(11) The Court should have regard to the age of the worker. It was acknowledged by the prosecutor that Mr Finnimore, who was 19 years of age at the date of the incident and relatively inexperienced (having only worked in the role of labourer with Orange for a month when the incident occurred), may not be in the contemplation of the aggravating factors set out in s 21A of the CSP Act. It is, however, a factor that enhances the objective seriousness of the offence.

(12) The prosecutor accepted that there were no aggravating factors present.

(13) The offence was objectively serious; it lay in the mid to upper range of seriousness of offences of this kind. This was particularly so given Mr Finnimore's young age and inexperience, the fact that the incident involved an unguarded piece of machinery and that the risk could have been easily controlled or eliminated.

Maximum Penalty

(14) Given the defendant had no prior convictions, the maximum penalty, pursuant to s 12(d) of the Act, was $55,000.

Need for Deterrence

(15) It was submitted by the prosecutor that general deterrence should be significant in the present case given that it involved a young, inexperienced worker. Any penalty imposed should reflect the obligation upon employers to ensure the safety of young and inexperienced workers: Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49.

(16) The prosecutor accepted that specific deterrence was not of elevated significance in the present case given the defendant was no longer a director of a company nor engaged in the waste recycling industry.

Subjective Factors

(17) Whilst they are to be taken into account in imposing a proper penalty, subjective factors are secondary in importance to the overall objective seriousness of the offence.

Plea of Guilty

(18) The defendant is entitled to a discount on sentence as a result of the utilitarian benefit offered by his plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.

(19) The discount for the utilitarian value of the defendant's plea should be reduced by the fact that the matter had been before the Court (and occupying its resources) for a long time: Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510.

(20) The matter was first mentioned on 14 June 2011. A case conference was held on 16 December 2011 after directions hearings on 26 July and 23 August 2011. A plea was indicated on 19 January 2012. The matter was referred for case management to Staff J in February 2012.

(21) On 30 March 2012, the matter was listed again before Staff J. A plea was further indicated on that date on the basis that negotiations were to occur. On 12 April 2012, submissions were received on behalf of the defendant and negotiations occurred. On 24 April 2012 a plea of guilty was entered.

(22) The prosecutor did not suggest by what amount the discount should be reduced, but submitted that was a matter for the Court.

Remorse and Contrition

(23) The prosecutor accepted that the defendant had demonstrated remorse.

Co-operation

(24) The defendant co-operated with WorkCover throughout the investigation.

Prior Convictions

(25) The defendant had no prior convictions. It was acknowledged by the prosecutor that that fact could be taken into account by the Court as a factor in mitigation of the offence: s 21A(3)(e) CSP Act.

Capacity to Pay

(26) It was submitted that any penalty imposed must reflect the seriousness of the offence in this matter.

(27) The prosecutor further submitted that the financial material before the Court was "not particularly fulsome", but acknowledged that the Court need only be satisfied, in regards to financial matters, on the balance of probabilities.

(28) It was acknowledged by the prosecutor that there was nothing it could say contrary to the submission of the defendant that he had minimal means to pay any fine. But whilst the defendant's financial means should be given consideration by the Court in determining penalty, it should not necessarily result in the Court not imposing any penalty (Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209).

Victim Impact Statement

(29) It was acknowledged by the prosecutor that the Statement was tendered on a limited basis, and could not provide any element of aggravation in respect of the offence.

Costs

(30) The appropriate course is that costs be reserved.

Moiety

(31) The prosecutor sought a moiety of any fine imposed for the WorkCover Authority of New South Wales.

Submissions for the Defendant

33 Ms Obradovic made oral and written submissions which, taken together, are summarised as follows:

Objective Factors

(1) It is well established that the primary factor to be considered in determining penalty under the Act is the objective seriousness of the offence charged: Lawrenson Diecasting at 472 - 476.

(2) However, the proper approach to the sentencing task is to weigh all relevant objective and subjective factors and then, if appropriate, make a deduction for the utilitarian value of the plea of guilty: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; (2005) 215 ALR 213.

(3) The CSP Act is also relevant to the sentencing process, in particular ss 3A ("Purposes of Sentencing") and 21A ("Aggravating, Mitigation and Other Factors in Sentencing").

(4) It was conceded by the defendant that the offence was objectively serious and in the mid range.

(5) It was submitted that there were systems in place prior to the incident (albeit those systems were improved following the incident). The systems in place prior to the incident included visual pre-operational inspections of the Trommel, training and visual assessments of employees for competency, the fitting of the conveyors with guarding and the provision of an emergency stop button on the conveyor within reach of the tail roller area where Mr Finnimore became entangled.

(6) It was accepted by the defendant that the guard on the tail roller of the elevated conveyor was not in place at the time of the incident. However, it was unclear (and there was no evidence as to) when the guard was removed. The defendant submitted it was not permissible to speculate that the guard had been removed for any extended period of time. The only finding that could be made with respect to the guard was that it was not affixed on the morning of the incident.

(7) It was acknowledged that the defendant was the sole director of Orange and a "hands on" manager, that is, he was at the premises everyday and was involved in the running of the company on a daily basis.

(8) It was also accepted by the defendant that Mr Finnimore was a vulnerable 19 year old man, who had worked at the premises as a labourer for a reasonably short period of time (one month approximately). However, whilst reasonably inexperienced, Mr Finnimore had awareness of the way the company had been running and the systems in place (and had received training in that respect); prior to being employed with Orange as a labourer, Mr Finnimore had worked (between October 2008 and 2009) as a business administration trainee and often performed labouring duties once his administration duties were complete on any given day.

(9) The assistance provided to Mr Finnimore by the defendant at the time of the incident was significant and traumatic: the defendant put his arm in the chest cavity of Mr Finnimore and stopped the flow of blood and spoke to Mr Finnimore and reassured him whilst emergency services were en route. The assistance provided by the defendant to Mr Finnimore should be taken into account as a mitigating factor in the circumstances.

Need for Deterrence

(10) General deterrence is a relevant matter to be considered by the Court in assessing penalty.

(11) Whilst accepting the offence was a serious one, the defendant referred to the judgment of Boland J in Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96, in which his Honour noted (at [24]) that whilst general deterrence was a major consideration in occupational health and safety cases, it should not be allowed to override, to an impermissible degree, the offender's favourable subjective circumstances, particularly that the defendant is unlikely to re-offend.

(12) The defendant's propensity to re-offend must be considered when determining the weight to be attached to specific deterrence. The defendant submitted that the need for this defendant to be specifically deterred by a significant fine is minimal, if indeed, in all the circumstances, specific deterrence is relevant at all: Capral Aluminium at [77].

Subjective Factors

Plea of Guilty

(13) It was submitted by the defendant that he had entered a plea at the first available opportunity. The defendant was entitled to a discount on sentence as a result of the utilitarian benefit offered by the plea: R v Thomson; R v Houlton.

(14) The defendant was not served until 14 June 2011 (the first return date) or shortly thereafter. There were then three other mentions, and the case conference was held in December 2011. There was an indication from January 2012 that the defendant was intending to plead guilty to an amended charge. It was submitted that, in such circumstances, the prosecutor and the Court had been on notice that there was that intention and the administration of justice was served because defendant did everything that was reasonable and expected.

(15) The defendant's plea was entered on 24 April 2012. Whilst initial proceedings were filed on 5 May 2011, the amended application for order was not filed until 30 April 2012. Leave to amend the application for order was only sought by the prosecutor some days before the filing of that amended application. It was indicated to the court in late April that the plea of guilty related to the amended application for order. The defendant had every right to negotiate with the prosecutor in relation to the particulars of the charge.

(16) The defendant acknowledged that, even in circumstances where a plea was entered on the basis of an amended application, which had the effect of confining the terms of the original charge, some basis may still exist for a reduction in the maximum utilitarian discount. It was further accepted by the defendant that the authorities state that, if a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at an early opportunity.

(17) It was conceded by the defendant that the discount for the utilitarian value of his plea may not amount to maximum 25 per cent discount, but should be significantly close to it (somewhere between 20 and 25 per cent).

Remorse and Contrition

(18) It was submitted that the defendant was extremely remorseful for the offence. He has accepted responsibility for the offence as evidenced by his plea of guilty and the acknowledgements made in his affidavit. He has also acknowledged the injuries suffered by Mr Finnimore as outlined in the statement of agreed facts.

(19) Whilst fully accepting the gravity of the risk, the defendant, through his actions assisting Mr Finnimore directly after the incident as described in his affidavit, ensured that the consequences of the incident were minimised as far as possible.

(20) Assistance was offered to Mr Finnimore by Orange and the defendant in an attempt to rehabilitate him, including some financial assistance. Mr Finnimore was offered employment and, indeed, took up employment with Orange some short time after the incident in which employment he remained for approximately four or five months. He resigned of his own volition in about May 2010.

(21) The defendant himself has suffered and continues to do so as a result of the incident. The incident has had a significant effect on the defendant's life and livelihood. The defendant resigned from his employment as a result of the impact of the incident.

Steps Taken Since

(22) Significant steps were taken following the incident to eliminate the risk. The guard was replaced on the tail roller of the elevated conveyor immediately. Fencing was constructed around the perimeter of the Trommel. Orange's systems of work with respect to the operation of the Trommel were reviewed and updated.

Co-operation

(23) The defendant fully co-operated with the prosecutor and the WorkCover Authority during its investigation into the incident. He assisted the prosecutor as much as possible in her investigations.

Prior Convictions

(24) The defendant has no prior convictions under the Act.

Capacity to Pay

(25) The defendant has a very limited capacity to pay any fine.

(26) The defendant was the sole director of Orange, a company which is now in liquidation (since 7 December 2011). The assets of the company in liquidation and the business have been sold.

(27) Orange was bought from the liquidators by 79A Gow Street Pty Limited in around December 2011/January 2012. The defendant was an employee of 79A Gow Street Pty Limited until his resignation in March 2012. The defendant is neither a shareholder or director, and has no interest in, the company 79A Gow Street Pty Limited.

(28) The defendant is currently unemployed. He and his family are being supported financially by immediate family and also by drawing against the equity in the property he owns jointly with his wife. He has four young children aged between 2 and 9. He is the sole breadwinner of the family.

(29) The mortgage of the defendant's house is about $400,000. His monthly expenses are approximately $6,000.

Victim Impact Statement

(30) It was submitted by the defendant that any weight given to the Victim Impact Statement by the Court should be minimal. The Statement could not go to any aggravating factor (as was acknowledged by the prosecutor).

Costs

(31) It was accepted by the defendant that the appropriate course was that costs should be reserved.

Moiety

(32) The defendant did not wish to be heard upon the question of a moiety of any fine being awarded to the prosecutor.

Relevant Principles

34 I discussed the relevant general principles for sentencing in this jurisdiction in some detail in Cross City Tunnel and, more recently, in Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114, Inspector Dall v Ullrich [2012] NSWIRComm 87 and Inspector Estreich v Hadfield [2012] NSWIRComm 88. I do not propose to repeat those principles here. Rather, I generally adopt the principles stated in those judgments and, in particular, 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.

35 It is relevant to note at this juncture that both parties 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 and the aggravating, mitigating and other factors identified in s 21A. 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).

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

Consideration

37 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, McDonalds 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]).

38 When constrained by the particulars of the charge, the relevant risk in the present matter was the risk to employees of being injured by coming into contact with the dangerous parts of the elevated conveyor (being one of the three conveyors which made up the Trommel) whilst in operation.

39 This matter concerns a failure to ensure that the Trommel used at the premises for the purpose of grading and sorting recyclable waste, and the systems of work relating to use of the Trommel by employees, were safe and without risk to health.

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

(1) the creation of, and adherence to, a formal safe operating procedure and the undertaking of a formal risk assessment regarding the operation of the Trommel including in relation to the removal and re-instatement of guarding on the elevated conveyor;

(2) ensuring appropriate guarding was in place to prevent access to the dangerous moving parts of the elevated conveyor (including the tail roller);

(3) ensuring that a requirement of any pre-operational visual inspection of the Trommel was to confirm that all guarding was present and secure and, if it was not, causing it to be re-instated;

(4) prohibiting the operation of, and access to, the elevated conveyor when guarding was not in place;

(5) ensuring that Mr Finnimore's supervision arrangements whilst working at the premises were clearly stated.

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

42 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].

43 On the morning of the incident, as Mr Finnimore descended the set of stairs adjacent to the elevated conveyor, the sleeve of his shirt became caught, and his right arm entangled, in the moving parts of the conveyor's tail roller. The elevated conveyor was, at that time, unguarded.

44 The Trommel's conveyors were fitted with guarding which was required to be removed, with a general tool such as a spanner, when the conveyor's belts were changed. It was an agreed fact that, approximately four weeks prior to the incident, new belts had been installed in two of the Trommel's conveyors, including the elevated conveyor. It was also agreed, however that, whilst clear that the guarding was absent on the day of the incident, no witnesses could attest as to when, exactly, the guard was removed (that is, whether it had been replaced after the new belts were installed four weeks prior to the incident, or how long it had been absent).

45 It was submitted by the defendant, and conceded by the prosecutor, that, based on the available evidence, no inference could be drawn as to when the guard of the elevated conveyor had been removed or whether the guard had been missing for any length of time. I accept the submission of the defendant that the only finding which can be made, in this respect, is that the guarding was not affixed to the tail roller of the elevated conveyor on the morning of the incident. That submission conforms to the charge which alleges that the defendant contravened the Act on a single day (being 17 July 2009). I shall approach the issue of the absence of guarding on that basis.

46 It was submitted by the defendant that there were systems in place prior to the incident. Those systems including visual, pre-operational inspections of the Trommel, training and visual assessments of employees for competency, the fitting of conveyors with guarding and the provision of an emergency stop button within reach of the tail roller of the elevated conveyor in which Mr Finnimore became entangled. It was accepted, however, that, in the circumstances, those measures were inadequate.

47 As I noted in McDonalds at [219] (citing Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 33 and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21), whilst I accept that the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.

48 The defendant is entitled to a moderate reduction in penalty in consideration of the systems which were in place at the premises prior to the incident. However, whilst the defendant should be given credit for the establishment of systems designed to achieve a safe work environment, it must also be assessed for the failures within those systems. In my view, the systems in place prior to the incident were not sufficiently comprehensive, vigilant and proactive (McDonalds at [184] and [222]). In addition to a failure to take simple remedial steps which would have obviated the risk (which I shall discuss below), the system that was established by the first defendant had evident failings. At the time of the incident, Orange did not have in place any formal, documented safe work procedures or risk assessments in relation to the use of the Trommel and, whilst employees were trained and visually assessed for competency in relation to operating and working with plant at the premises, neither training nor assessments were documented. Further, pre-operational visual inspections of the Trommel were conducted, but not recorded and, on the day of the incident, failed to detect (but should have detected) that the guard was missing.

49 A related consideration is the availability of remedial measures that were straightforward or simple. Immediately following the incident, and prior to Orange being placed into voluntary liquidation on 7 December 2011, the guarding on the elevated conveyor was replaced, and access to the set of stairs near the conveyor was restricted by way of a gate and fencing around the perimeter of the Trommel. The procedure for the operation of the plant was reviewed by the defendant, and a written procedure in respect of such operation was produced. Orange revised its occupational health and safety system and developed formal documented safe work procedures. An employee induction handbook was developed in relation to machinery used at the premises, and all new employees were required to undergo a theoretical and practical assessment in relation to all plant at the premises. Minuted fortnightly tool box meetings were instituted and 32 cameras were installed, following Orange's relocation to larger premises at Padstow in September 2009, which allowed office staff to observe employees working in a safe manner.

50 Whilst the response by the defendant following the incident was laudable, I accept the submission of the prosecutor that the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk and prevent the incident involving Mr Finnimore. In such circumstances, the steps taken by the defendant after the incident are demonstrative of flaws which existed in Orange's previous systems: McDonald at [226] (citing Kembla Coal at 36 and University of Sydney at 21-22).

51 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 Kembla Coal at 27; McDonalds at [450] and Capral Aluminium 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]).

52 I accept the prosecutor's submission that the risk to employees of coming into contact with the moving parts of the elevated conveyor was foreseeable. Not only was the elevated conveyor left unguarded, but employees were required to transit within close range of the conveyor. This was evidenced by the fact that a set of stairs, used to access the picking line, and a narrow path, used to access an outdoor amenities area, were located immediately adjacent to the tail roller. Neither the stairs nor the path possessed any barriers to prohibit their use whilst the conveyor was operating, let alone operating whilst unguarded.

53 A further consideration, in this respect, is the relationship between the seriousness of the injuries suffered, or which may have been suffered, and the assessment of the gravity of the offence (Capral Aluminium at [94]). The occurrence of the serious injury of Mr Finnimore manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.

54 It was acknowledged by the prosecutor, and I accept that, at 19, Mr Finnimore's age may not be within the contemplation of the aggravating factors set out in s 21A of the CSP Act (in particular s 21A(2)(l) which provides that the vulnerability of a victim, where, for example, the victim was "very young", is an aggravating factor which may be taken into account by the Court in determining penalty). It was submitted that, however, the young age and relative inexperience of Mr Finnimore were factors which enhanced the objective seriousness of the offence. In reply, it was submitted by the defendant that, whilst Mr Finnimore was vulnerable due to his young age and the fact that he had been employed as a labourer for a reasonably short period of time prior to the incident, he had awareness of the way in which the company had been running and the systems in place (and had received training in that respect). This was due to the fact that Mr Finnimore had worked as a business administration trainee with Orange between October 2008 and June 2009 and had, during that period, often performed labouring duties at the premises.

55 Employers carry an additional burden of responsibility for ensuring the safety of young and inexperienced employees on their worksites (Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82 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 (Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; (2002) 113 IR 78 at [93]).

56 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].

57 At 19 years of age, Mr Finnimore would be considered to be a young man in the community, and was a reasonably young man for employment purposes. He had been engaged as a labourer by Orange for just one month prior to the incident. It is not clear how much labouring experience Mr Finnimore had gained prior to that engagement during his time working as an administration trainee at Orange. It is suffice to say, however, that any such experience was incidental to his traineeship. I have earlier discussed the limitation in the training regime at the workplace. In the circumstances, Mr Finnimore should be considered as having been a relatively inexperienced worker at the date of the incident. To that factor is added the fact that, on the day of the incident, supervision arrangements were inadequate. The vulnerability of Mr Finnimore due to his young age and inexperience is a factor which must add to the objective seriousness of the offence in this matter.

58 It is appropriate to consider three further matters going to the question of objective seriouness. The first is the maximum penalty for the offence (see Cross City Tunnel at [192](i)]). The maximum penalty for the offence, the defendant being a first offender, was $55,000.

59 The second consideration is deterrence (see Cross City Tunnel at [192](iii)). General deterrence is applicable in relation to this offence. 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 waste management industry 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 in workplaces which employ 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 industries engaged in the use of dangerous machinery that a failure to ensure such machinery is properly guarded at all times is, in the present day, unacceptable.

60 It was submitted by the defendant (in reliance on the judgment of Boland J in Thiess) that, whilst the offence was serious, and general deterrence is a major consideration in occupational health and safety cases, it should not be permitted to override the offender's favourable subjective circumstances to an impermissible degree.

61 The judgment of a Full Bench of this Court in Capral Aluminium established the applicable principles as to general deterrence in sentencing proceedings under the Act. For present purposes, the relevant passages of the judgment are as follows (at [73] - [74]):

73 Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said:

the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace.

74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

62 When considered in the light of those principles, the factual circumstances of the present matter, and, in particular, the fact that the incident involved a young worker and unguarded machinery, are such that general deterrence must, in my view, feature prominently in the penalty imposed on the defendant.

63 It was contended by the defendant that his propensity to re-offend must be considered when determining the weight to be attached to specific deterrence and, therefore, the need for the defendant to be specifically deterred by a significant fine was minimal, if indeed, in all the circumstances, it was necessary at all. It was accepted by the prosecutor, in this respect, that, given the defendant was no longer a director of a company nor engaged in the waste recycling industry, specific deterrence was not of elevated significance in the present case. 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 only a minor element for specific deterrence in the penalty.

64 Thirdly, in assessing the objective seriouness of the offence in this matter, it is necessary to consider the submission of the prosecutor that, whilst the culpability of a personal defendant could be no greater than that of the corporate defendant, consideration should be given, in assessing the appropriate penalty to be placed on the personal defendant, to the role of the defendant in the management of Orange and the gravity of the offence as identified in relation to the corporate defendant. (It can be noted that, in the present case, there were no proceedings against Orange as it was in liquidation.)

65 The defendant was, at the time specified in the charge, the sole director and general manager of Orange, and was responsible for the overall running of the business. He attended the premises on a daily basis and had a "hands on" role in the running of the company. The defendant had provided to Mr Finnimore, prior to the incident, a timetable sheet which indicated that, on the day of the incident, he was rostered to work on the picking line. 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.

66 Before considering, overall, the question of objective seriousness, two matters require mention. First, it was conceded by the prosecutor that there were no aggravating factors present in the circumstances of the case.

67 Secondly, in addition to the existence of safety systems prior to the incident and the positive steps taken by the defendant to improve those systems after the incident (as discussed above), there are some other factors which mitigate the seriousness of the offence in this matter. Primary amongst those was the fact that the defendant had no prior convictions (s 21A(3)(e) of the CSP Act). In addition, as discussed in relation to specific deterrence, the defendant is unlikely to re-offend (s 21A(3)(g)). (I shall consider subjective features of the matter below.)

68 On balance, taking into account the factors in mitigation of the offence and the absence of any aggravating factors, the circumstances of the incident, particularly insofar as it involved a risk which was foreseeable, involving an unguarded piece of machinery, and which manifested in the serious injury of a young and inexperienced worker, must result in the conclusion that the offence was serious.

Subjective Features

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

70 Demonstrations of remorse and contrition by defendants is a factor which may be taken into account in the assessment 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], Inspector Jones v Challita and Anor [2006] NSWIRComm 207; (2006) 153 IR 409 at [39], Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210 at [53], McDonalds at [454] and s 21A(3)(i)(ii) of the CSP Act.

71 It was submitted by the defendant, and agreed by the prosecutor, that he had accepted responsibility and was extremely remorseful for the offence. This was demonstrated by his plea of guilty, the statements made in his affidavit and his acknowledgment, in the statement of agreed facts, of the injuries suffered by Mr Finnimore. It is also demonstrated by his conduct at and since the incident. I accept that the defendant demonstrated genuine remorse and contrition over the incident.

72 The assistance rendered to an injured worker, including steps taken by a defendant in relation to their welfare, rehabilitation and continuing employment, provides tangible confirmation of contrition and is a relevant factor in mitigation: Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [17] and Morrison v Powercoal (No. 3) at [112] and [114].

73 Following the incident, the defendant provided some financial support to Mr Finnimore, including the purchase of a laptop and retraining, and assistance was offered to Mr Finnimore by Orange and the defendant in an attempt to rehabilitate him. Mr Finnimore was offered and took up employment with Orange in an administrative role some short time after the incident, in January 2010, however, resigned his position some four or five months later. The defendant should be entitled to some benefit as a result of the assistance which was provided to Mr Finnimore after the incident.

74 It was further contended by the defendant that the assistance he provided to Mr Finnimore at the premises at the time of the incident (as described above) should be taken into account as a factor in mitigation of the seriousness of the offence. It was submitted, in this respect, that , whilst the defendant accepted the gravity of the risk, his quick response and his actions in the immediate aftermath of the incident had ensured that the consequences of the incident were, for Mr Finnimore, minimised as far as possible. Furthermore, the defendant deposed, in his affidavit, that the incident, including his own involvement at the scene, had had a significant effect on his life; he was diagnosed, following the incident, with severe depression and subsequently resigned from his employment with 79A Gow Street Pty Limited.

75 I accept these submissions.

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 Robert 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 a 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 submitted that the defendant could not be taken as having entered his plea at the earliest possible opportunity and, as a result, the discount for the utilitarian value of his plea should be reduced. The original application for order in this matter was filed on 5 May 2011; the amended application for order was filed on 30 April 2012. The defendant entered his plea on 24 April 2012. It was submitted by the prosecutor that the matter, for which some six directions hearings had occurred in the period between the date when the matter was first listed and the plea entered, had occupied the resources of the Court for an extended period of time.

79 It was submitted by the defendant that, contrary to the submission of the prosecutor, he had entered a plea at the first available opportunity. The defendant had provided an indication in January 2012 that he intended to plead guilty to an amended charge. It was submitted that, in such circumstances, the prosecutor and the Court had been on notice of that intention and the administration of justice was served in that respect. Further, it was submitted, the defendant had every right to negotiate with the prosecutor in relation to the particulars of the charge. It was, however, conceded by the defendant that, even in circumstances where a plea was entered on the basis of an amended application, which had the effect of confining the terms of the original charge, there may be some basis for a reduction in the maximum utilitarian discount. It was submitted, in this respect, that the appropriate discount was in the range of 20 - 25 per cent.

80 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).

81 In Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143, Boland J made reference to the following principle espoused by the Court of Criminal Appeal in R v Dib [2003] NSWCCA 117 at [5] - [6] (which principle was also referred to by the defendant in submissions):

If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

82 However, Boland J went on to note, in Duct Master at [38], the following:

However, simply because a defendant waits until the prosecution amends the charge before entering a plea at the earliest opportunity thereafter, that will not, in my opinion, automatically lead to the sentence being discounted by 25 per cent. Some assessment would need to be made about whether the delay in pleading caused an unnecessary waste of time and resources.

83 The timing of the defendant's plea in the present case, coming some while after proceedings were first filed, was such that there was a reduction in, to quote Dib, its advantage to the administration of justice. The defendant did not enter his plea until some 10 months after the matter was first mentioned and, during that time, the matter came before the Court for the purpose of directions hearings on six occasions (although the defendant foreshadowed, before the formal plea of guilty was entered and towards the end of this chronology, that he intended to make a plea of guilty). Nonetheless, it is still the case that the loss of that advantage was modest. The defendant shall receive a discount of 20 per cent for his plea of guilty.

84 The defendant is a first offender. This should be taken into account as a significant factor: Corinthian Industries at [17]; Morrison v Powercoal (No. 3) at [107] and 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 at [107].

85 It is clear from the foregoing discussion that there are substantial subjective features operating in favour of the defendant. These will be given weight by the Court in fixing a penalty.

Capacity to Pay

86 Counsel for the defendant raised the means of the defendant as a factor bearing upon any penalty imposed by the Court.

87 Section 6 of the Fines Act 1996 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.

88 The principles applicable to the assessment of a defendant's financial circumstances under the Fines Act were discussed by this Court in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284 and, more recently, in Hadfield.

89 The relevant passages of the judgment in Schrader are as follows (at [83] - [84]):

83 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]):

It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

84 This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]):

... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p333; and Profab Industries (49 NSWLR at p714, 100 IR at p76).

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp209 - 210, Wright J, President observed :

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

...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...

90 The relevant passages of the judgment in Hadfield are as follows (at [85] - [88]):

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).

91 In my view, the evidence adduced by the defendant in this matter establishes a proper basis for the Court to exercise its discretion under s 6 of the Fines Act. The exercise of that discretion is, however, affected, to some extent, by the lacunae in the financial evidence led on behalf of the defendant. That evidence did not fully disclose the defendant's financial circumstances, as was contemplated in the authorities discussed in Hadfield.

92 It was submitted for the defendant that he had a limited capacity to pay any fine. This contention has substance. The defendant was, at the time specified in the charge, the sole director of Orange, a company which is now in liquidation. The assets of the company in liquidation and the business were subsequently sold. The defendant deposed in his affidavit that he was the sole breadwinner for his family, which included his wife and four children aged between 2 and 9 years. He was diagnosed, subsequent to the incident, with severe depression and is currently unemployed. The defendant's family is being supported financially by immediate family and by drawing against the equity in the property he owns with his wife. That property is valued at between $550,000 and $600,000, and is subject to a mortgage of about $400,000. The defendant's monthly living expenses, including mortgage repayments, school fees, utilities and groceries, totalled approximately $6,000.

93 It was submitted by counsel for the prosecutor that the financial material before the Court was "not particularly fulsome", however, she could not say anything contrary to the submission of the defendant that he had minimal means to pay any fine. This is a fair submission. As I have observed, the evidence adduced by the defendant in respect of financial matters was not comprehensive. In particular, the defendant did not tender any financial statements or other relevant documentation setting out, in full, his financial standing at the time of the sentencing hearing. Further, the evidence led did not disclose whether the defendant had benefited (and, if so, to what degree) by the sale of the business. There was also no record provided of accounts as to savings or assets owned by the defendant, other than his residential property.

94 I accept that the defendant has established, on the evidence, a proper basis for a reduction in penalty under s 6 of the Fines Act and I am of the view that, on balance, the financial circumstances of the defendant should be taken into account, such that there shall be a reasonably significant reduction in penalty imposed. The Court accepts, in this respect, that the defendant is facing financial difficulties and has a reduced capacity to pay any fine as evidenced by the loss of his business, his current unemployment and the cost of supporting his family. Nonetheless, the strength of the defendant's argument with respect to financial issues was stronger than that which was presented by the defendant in Hadfield, but, as noted, fell short of full disclosure.

95 It was also submitted by the prosecutor that, whilst the defendant's financial means should be given consideration by the Court in determining penalty, any penalty imposed must reflect the seriousness of the offence in this matter. I agree. As I noted in Hadfield at [93], 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, Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435, R v Rushby (1997) 1 NSWLR 594, Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, Ferguson v Nelmac and 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 v R (1989) 43 A Crim R 81 (at 86)).

Conclusion

96 As earlier noted, the Court must ensure that mitigating and subjective factors do not produce a sentence which fails to sufficiently take into account the objective seriousness of the offence.

97 Here, a young worker suffered serious injury as a result of becoming caught in an unguarded piece of machinery. The objective seriousness of the offence is well manifested by the charge and the particulars thereof, and the various factors discussed in this judgment which dictate a conclusion that the offence remains a serious one. Nonetheless, I have reduced the penalty which may have otherwise been imposed upon the defendant because of the significant mitigating and subjective features demonstrated in this case and given the defendant's difficult financial circumstances. I shall impose a penalty of $10,000 with a moiety to the prosecutor. Costs shall be reserved.

Orders

98 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 $10,000 with a moiety to the prosecutor.

3. Costs are reserved.

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Decision last updated: 09 November 2012