Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Hannah v Graincorp Operations Limited [2005] NSWIRComm 427 PROSECUTOR Inspector Hannah PARTIES: DEFENDANT Graincorp Operations Limited FILE NUMBER(S): IRC 6035 and 6036 of 2004 CORAM: Boland J CATCHWORDS: Occupational health and safety - Prosecutions under s 8(1) and 8(2) of the Occupational Health and Safety Act 2000 - Pleas of guilty - Grainhandling and transport industries - Worker seriously injured when handling mobile auger - Particular need for specific deterrence - Prior convictions - Whether defendant could be regarded as good corporate citizen - Consistency in sentencing - Totality - Penalties imposed Occupational Health and Safety Act 1983 LEGISLATION CITED: Occupational Health and Safety Act 2000 Abigroup Contractors Pty Ltd v WorkCover (Inspector Maltby) (2004) 135 IR 317 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Hannah v Patersons Transport Pty Limited [2005] NSWIRComm 348 CASES CITED: Inspector Mason v Graincorp Operations Limited [2005] NSWIRComm 328 Lowe v The Queen (1984) 154 CLR 606 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited [2003] NSWIRComm 122 HEARING DATES: 11/04/2005 DATE OF JUDGMENT: 11/18/2005 PROSECUTION Mr M Cahill of counsel Solicitor: Mr N A Correy Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT Mr P Skinner of counsel Solicitor: Mr M Stiles Goldbergs JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Friday 18 November 2005 Matter No IRC 6035 of 2004 INSPECTOR IAN HANNAH v GRAINCORP OPERATIONS LIMITED Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 6036 of 2004 INSPECTOR IAN HANNAH v GRAINCORP OPERATIONS LIMITED Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 427 1 Graincorp Operations Limited (the defendant) conducted the business of commercial storage and handling of grain from various sites including a grain handling facility/depot at the corner of Richmond and Hume Streets, Boree Creek in the state of New South Wales. The defendant had contracted with Paterson's Transport Pty Ltd (Paterson's) to cart grain from the depot to a mill at Narrandera. The defendant had in use at the depot an electrically driven vertical post auger that was used to load grain onto the trucks carting the grain. 2 On 16 October 2002 Danny Wayne Stone, an employee of Paterson's, had driven his truck to the Boree Creek depot to load grain from one of the sheds at the depot. Mr Stone was waiting for other trucks, including a truck being driven by Owen Sullivan, another employee of Patterson's, to be loaded. At about 7.30am both Mr Stone and Mr Sullivan had noticed that the auger had stopped working. 3 Anthony Widdup, Roger Pink and Bill Allen were employees of the defendant. They attempted to re-start the auger but were unsuccessful. They decided to remove the auger from the "pop hole" in the storage shed but experienced difficulty in doing so. Mr Stone and another employee of Paterson's, David O'Callaghan, tried to assist the defendant's employees in pulling the auger free from the "pop hole". 4 As the auger came free it started to over-balance and its top end hit the ground and its bottom end went high into the air and then came down. The auger's A-frame support also collapsed in the incident and as the boom came to the ground it landed on Mr Stone, with considerable force, causing severe injuries to him. As a consequence of the incident Mr Stone sustained fractures to both legs, pelvis and left arm as well as internal injuries. At the same time the defendant's employee, Mr Widdup, was struck on the right shoulder and arm and also on his shins as the boom came down. He did not sustain serious injury as a consequence of the incident. 5 The defendant was prosecuted by Inspector Ian Hannah of the WorkCover Authority of New South Wales under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000. Those provisions are in the following terms: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 6 The charge brought against the defendant under s 8(1) was that on 16 October 2002 the defendant failed: To ensure the health, safety and welfare at work of its employees including Anthony Widdup, Roger Pink and Bill Allen ('the workers') contrary to s 8(1) of the Occupational Health and Safety Act 2000. PARTICULARS 1. The defendant failed to provide and maintain a system of work that was safe and without risk to health, in that: (a) There was no, or no proper, Safe Work Procedure in place with respect to the handling and use of portable grain augers used, from time to time, to load grain onto trucks at the Boree Creek Depot, including the 90TPH Electric Screw Auger, bearing number "DA 3327", ("the auger") located at the depot. (b) The defendant did not properly identify, assess and eliminate or otherwise control, the risk of the auger upending and collapsing when it was being moved. (c) The conduct of the work by the workers when there was a risk of the auger upending and/or collapsing was unsafe. 2. The defendant failed to ensure that plant, to wit the auger, provided for use by its employees at work was safe and without risk to health when properly used in that there was a risk of it upending and/or collapsing when it was being moved. 3. The defendant failed to provide such information, instruction, training and supervision in relation to the conduct of work involving the handling and use of the auger as was necessary to ensure the workers' health and safety. 7 The charge brought against the defendant under s 8(2) was that on 16 October 2002 the defendant failed: To ensure that people, other than the defendant's employees, including Danny Stone ('the worker') were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, to wit, the commercial storage and handling of grain, while they were at its place of work, namely the Boree Creek Depot, contrary to section 8(2) of the Occupational Health and Safety Act 2000 (NSW). 1. The defendant failed to maintain a safe system of work with respect to the loading of grain onto trucks at its depots, including the Boree Creek Depot. 2. The defendant did not properly identify, assess and eliminate or control the risk of the auger upending and collapsing when it was being moved. 3. The defendant failed to ensure that plant provided for use in the conduct of its undertaking at work, to wit the auger, was safe and without risk to health when properly used in all the circumstances. 4. The defendant failed to provide such information, instruction, training and supervision in relation to the work of loading trucks with grain for cartage at its depot, including information, instruction, training and supervision with respect the handling and use of loading equipment, to wit the auger. 5. The worker sustained severe personal injuries at the depot on 16 October 2002 when in attempting to move the auger it upended and collapsed onto him. 8 The defendant pleaded guilty to both charges. It may be noted that Paterson's were also prosecuted in relation to the same incident. A penalty of $55,000 was imposed: Inspector Hannah v Patersons Transport Pty Limited [2005] NSWIRComm 348. 9 The parties filed an agreed statement of facts. I have drawn on the agreed statement in the earlier paragraphs of this decision in describing the immediate circumstances of the incident. In addition, the agreed statement provided information regarding a number of other relevant matters: 22 Neither of the other defendant's employees, Allen and Pink, who were also assisting with the attempt to move the auger, sustained any injury at the time of its collapse, however, all of them, ie, Widdup, Pink and Allen, were at risk of serious injury in the incident as they were all in close proximity to it when it came down. 23 At all material times it was not an unknown or uncommon occurrence for an auger of this kind to stop working because of some fault of its internal mechanism. 24 At all material times prior to 16 October 2002 in the event of a jamming of the auger occurring it was the defendant's normal procedure to remove it from the storage facility. 25 At all material times on and prior to 16 October 2002 augers such as the auger in use in this instance, had a tendency to over balance if moved with the boom raised and charged with grain. 26 At all material times the defendant's depot policy with respect to all visitors to its sites, including truck drivers, was set out in the document entitled "Welcome to GrainCorp Site Safety for Visitors.' Attached and marked with the letter "A", is a copy of the said document. The site instruction provided that: " When on site: · …Keep clear of elevators, conveyors and mobile grain handling equipment…." 27 However, the defendant did not provide a site induction to Mr Stone, Mr Callaghan or Mr O'Sullivan, nor did the defendant provide Mr Stone, Mr Callaghan and Mr O'Sullivan with a copy of the document entitled " Welcome to GrainCorp Site Safety for Visitors". 10 The prosecutor tendered a bundle of documents that included: (1) A factual report of the incident prepared by Inspector Downie dated 31 October 2002; (2) Coloured photographs of the incident scene including the auger; (3) A document entitled "Welcome to Graincorp Site Safety for Visitors"; (4) A safety bulletin entitled "Graincorp Voluntary Labour Policy" issued in November 2002; (5) A record of the defendant's prior convictions. 11 For the defendant the affidavit of Paul Robert McConaghy was read. Mr McConaghy was the defendant's Industrial Relations Manager. The defendant also tendered its Site Operations manual, which sets out in considerable detail the steps in undertaking the various tasks to be performed by workers, with a strong emphasis on safety. 12 Mr McConaghy was responsible for occupational health and safety within his organisation. He reports to Company Secretary, Nigel Hart, who is answerable to the Managing Director and Chief Executive Officer, Mr Tom Keene. 13 Mr McConaghy deposed that Graincorp Operations employs some 800 permanent staff in New South Wales, Victoria and Queensland with some 500 permanent staff in New South Wales. In addition, there are approximately 2,100 casual staff employed during the normal harvest season in New South Wales, Victoria and Queensland, of which some 1,200 to 1,500 may be employed in New South Wales alone depending on the nature of the season. 14 Mr McConaghy said the defendant has some 243 sites in New South Wales, 240 in Victoria and 71 in Queensland, of which 190 in New South Wales, 107 in Victoria and 57 in Queensland are operational. In addition there are 9 seaboard export terminals operated by the defendant. 15 Mr McConaghy referred in his evidence to a record of interview of Mr Murray Wilkinson, Central Division Manager for the defendant whose responsibility incorporated Boree Creek and in particular the grain storage shed at the corner of Richmond & Howe Streets where the incident involving Mr Stone occurred. Mr Wilkinson said that Mr Bill Allen the site supervisor at Boree Creek had been trained in conducting risk assessments as well as manual handling. Mr Wilkinson opined that: Billy [Mr Allen] should have recognised the potential risk of the auger tipping and informed his area manager or me or even independently taken action so that the risk of injury having been identified was removed or addressed. 16 Mr McConaghy also referred to the fact that at the time of the incident the defendant was in the process of implementing an intention to "cease with the use of volunteer labour undertaking operational activities at Graincorp sites." The catalyst for ceasing the practice was said to be insurance related. 17 Following the incident the defendant promptly issued new Standard Work Instructions dealing with augers and their use and operation in loading grain trucks. 18 In his affidavit Mr McConaghy deposed that: I am also instructed that during the course of the whole investigation process in accordance with company policy, Graincorp assisted in making available to the WorkCover investigators access to interviews with all staff required so that WorkCover could satisfy itself as to the circumstances surrounding Mr Ford's (sic) injury. I am also of the opinion that the Defendant company has a policy to carry out operations as a "good corporate citizen". Graincorp has operated the Graincorp Foundation in which 1% of all its after tax profits are donated to rural centres to provide and assist the region in which the company operates. 19 I notice in Mr McConaghy's affidavit he referred to "the circumstances surrounding Mr Ford's injury." No Mr Ford was injured in the proceedings before me. I note, however, the name of the injured worker in Inspector Mason v Graincorp Operations Limited [2005] NSWIRComm 328 was Michael John Ford. In circumstances where the defendant has an unenviable record of prior convictions, the cutting and pasting of an affidavit - because that is how it appears - that may have been used in other recent proceedings brought against the defendant under the Occupational Health and Safety Act, does nothing to assist the defendant in the impression it creates with the Court as to the seriousness with which the defendant has viewed the prosecution. However, I have given the defendant the benefit of the doubt and will regard the error as an accidental slip. Consideration 20 The defendant has pleaded guilty to two charges under the Occupational Health and Safety Act. The failures alleged in both charges were similar as the comparative table shows: Section 8(1) charge Section 8(2) charge Failure to provide and maintain a safe system of work: (a) no safe work procedure; Failure to maintain safe system of work with respect to loading of grain onto trucks. (b) failure to identify, assess, eliminate, control risk of auger collapsing; (c) conduct of work when risk of auger collapsing was unsafe. Failure to ensure that plant was safe. Failure to ensure that plant was safe. Failure to identify, assess and eliminate or control the risk of the auger upending and collapsing. Failure to provide necessary information, instruction, training and supervision in relation to conduct of work involving handling and use of auger. Failure to provide information, instruction, training and supervision in relation to work of loading trucks including information, instruction, training and supervision with respect to the handling and use of auger. 21 The auger was a large, unwieldy piece of machinery that should have been handled and operated by persons properly trained to do so. Persons such as the employees of Paterson's, who may not have been familiar with the auger, should not have been permitted to handle the auger and clear instructions should have been issued to this effect. Graincorp had issued a safety instruction to the effect that visitors were to keep clear of elevators, conveyors and mobile grain handling equipment when on site but the instruction was not given to the employees of Paterson's and the defendant did not provide a site induction for those employees. 22 Since the incident occurred, the defendant has introduced a system whereby drivers visiting the site are now provided with a safety pamphlet and are required to sign an acknowledgement that they received the pamphlet. 23 As to its own employees it would appear that the site supervisor, Mr Allen, and Mr Widdup had received training in relation to the conduct of risk assessments and manual handling and Mr Allen had received training in occupational health and safety generally. 24 The agreed facts included that: At all material times it was not an unknown or uncommon occurrence for an auger of this kind to stop working because of some fault of its internal mechanism. At all material times prior to 16 October 2002 in the event of a jamming of the auger occurring it was the defendant's normal procedure to remove it from the storage facility. At all material times on and prior to 16 October 2002 augers such as the auger in use in this instance, had a tendency to over balance if moved with the boom raised and charged with grain. 25 Thus, although certain employees had received relevant training of a general nature there was no specific information, training or instruction given to them in relation to what was a potential dangerous piece of machinery in regular use at the site, namely the auger, despite the fact that "in the event of a jamming of the auger occurring it was the defendant's normal procedure to remove it from the storage facility" and that the auger had "a tendency to over balance if moved with the boom raised and charged with grain." 26 The defendant's failure to address in a specific way the safe operation of the auger was a significant oversight on its part in terms of providing and maintaining a safe system of work. 27 The risk of someone being struck by this particular auger was obvious. The tube or barrel of the auger was mounted on a wheeled A-frame with the electric motor mounted on the tube just behind where the A-frame joined the tube. When it was being used, the receiving end of the auger was inserted into a "pop hole" about 800 mm above ground level in the shed containing the grain. The discharge end of the 7.8 metre long tube was winched up by means of a luffing winch situated on the A-frame so that it was situated over the truck being loaded with the grain. The grain was transferred from the shed to the truck by means of a screw conveyor in the tube. When the screw conveyor stopped the tube was full of grain. 28 It was obvious, given the length of the tube from the point of where the A-frame was attached to the tube (what might be regarded as the fulcrum) to the discharge end, and the fact it was full of grain, that once the receiving end of the tube was removed from the pop hole the discharge end of the boom would rapidly tip towards the ground, creating a risk to the health and safety of any worker in the vicinity. The risk was easily avoidable: A risk assessment would have revealed the dangers of removing the auger from the pop hole whilst its length remained at an angle of about 45 degrees to ground level. Moreover, before removing the receiving end of the tube from the pop hole the whole length of the tube could have been lowered closer to ground level by means of the winch. 29 Further, as the prosecutor submitted: [T]he defendant could have issued an instruction to its employees and to all visitors to its depots that directed both its employees and all visitors that both staff and visitors were not to handle any equipment and, in particular, equipment with which they were unfamiliar and in respect of which they had received no specific training or instruction from the defendant. Alternatively, the defendant could have instructed all visitors not to handle and/or operate any of the defendant's plant. 30 An indication of the seriousness of an offence may lie in whether there was a death or serious injury. The injuries sustained by Mr Stone confirm that the risk presented by the auger in this case was, indeed, a serious one and that will affect the Court's consideration of what is an appropriate penalty in relation to the charge under s 8(2). On the other hand, the injuries to the defendant's own employee, Mr Widdup, were not serious. However, the fact that Mr Widdup was not seriously injured was more a matter of good fortune than the fact that the risk was not serious. Notwithstanding the fact that Mr Widdup was not seriously injured, the risk presented by the collapsing auger must be regarded as serious. 31 Despite the failures by the defendant to ensure the safety of workers at the Boree Creek site and despite the seriousness of the risk, I am not of the view that the defendant is unconcerned with safety. Whether it has devoted sufficient resources to ensuring occupational health and safety across what is a large workforce, especially at harvest time, located in an exceptionally large number of scattered, and in many cases, remote sites is, in my opinion, problematic. But I agree with what Staff J said in Inspector Mason v Graincorp Operations Limited at [37]. This also is not a case where the defendant has no systems in place in relation to safety. The evidence indicates that the defendant does take occupational health and safety seriously and took steps to remedy the deficiencies in safety at its Boree Creek depot. These considerations must tend to mitigate the seriousness of the offence. 32 In this regard, I note that prior to the incident the defendant had identified the need to improve its site safety management practices with respect to visitors to its depots. The defendant was in the process of training its site managers that they were no longer to accept "volunteer labour" and that the defendant was also in the process of rolling out a new procedure requiring all visitors to its sites to sign a written acknowledgement that they had been site inducted, including the provision of a copy of the defendant's "Site Safety for Visitors" document. It was said by Mr McConaghy these changes were to be announced at a training session to have been held on 21 October 2002 at which Mr Allen was due to attend. 33 Following the incident, the defendant undertook a detailed, specific risk assessment with respect to the use and operation of mobile augers and then directed that they be removed from service until an engineering investigation into ways of controlling their instability had been undertaken. Further, the defendant introduced a detailed safe work method statement concerning the handling and operation of mobile augers, including a direction that the boom or flight arm was to be lowered prior to any attempt to move any auger. The defendant also reinforced its directions to its staff that visitors to its sites were not to handle or operate any of the defendant's equipment and the defendant rolled out its system requiring all site visitors to be provided with the "Site Safety for Visitors" pamphlet and to acknowledge in writing that they had been provided with a copy of that document. 34 General deterrence is an important consideration for the reasons expressed by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388: 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 risk to their health and safety at the work place. 35 Specific deterrence is also an important consideration in this case. That the defendant has a large workforce of permanent and seasonally casual workers; that its operations are scattered across a large number of sites which are in some cases located in remote areas of the State; that it operates potentially dangerous equipment and machinery; and, that its management of occupational health and safety is complicated by the fact, particularly at harvest time, that a large number of visitors attend its workplaces, increases the likelihood that the defendant will re-offend unless it is reminded, by way of an appropriate penalty, to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. 36 As the prosecutor reminded me, in WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited [2003] NSWIRComm 122, Staunton J observed: 52 What those prior convictions emphasise to me is the inherently dangerous nature of much of the defendant's workplace operations, particularly given the type of machinery, plant and equipment used and the nature of the work involved. 53 I have already emphasised the diverse and scattered nature of the defendant's workplaces. On a subjective basis I do accept that the defendant has significant training programmes and operational procedures in place covering a diversity of workplace circumstances and situations. 54 On that basis, I do accept that the defendant is not an employer who has either walked away or not confronted many aspects of its occupational health and safety responsibilities. 55 If I had a view, it is that the diverse and scattered nature of its workplace requires particular initiatives to ensure that safe work practices are conveyed to employees in a way that ensures that the message is directly received, understood and applied in practice. It should then be consistently re-emphasised by regular retraining. Those latter statements are relevant to considerations of specific deterrence as much as any subjective features having regard to the defendant's occupational health and training activities. I respectfully endorse her Honour's observations. 37 Turning to relevant subjective considerations, the defendant pleaded guilty and the prosecution accepted the pleas were made at an early stage. The defendant is entitled to a discount on the penalties for the utilitarian value of the plea and I assess that discount at 25 per cent in each case. 38 The defendant is also entitled to have taken into consideration its co-operation with the WorkCover Authority in its investigation of the incident. Further, I accept that the defendant provided assistance to the injured worker, Mr Stone. 39 I have already referred to the remedial steps taken by the defendant following the incident and this action mitigates in the defendant's favour. 40 As it did in Inspector Mason v Graincorp Operations Limited, the defendant submitted that it was a good corporate citizen, a factor the Court would normally taken into account in the defendant's favour in the determination of penalty. In that case, however, Staff J took the view that in light of its criminal record the defendant was not entitled to a discount on the grounds of good corporate citizenship. His Honour considered each of the eight prior convictions against the defendant and concluded: 62 It is therefore appropriate that I take into account the antecedent criminal history of the defendant as, in my view, "it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind." 63 The offence cannot be characterised as an aberration in my view, but should be seen as continuing an attitude of disobedience to the law. 41 The defendant now has nine convictions against its name in a space of six years. The guilty pleas in relation to the charges before me will mean eleven convictions. It is not a simple matter, however, of pointing to the number of prior convictions and arriving at the conclusion the defendant is not a good corporate citizen. Of course, if the Court, after making a proper assessment of the prior convictions and other relevant factors, comes to the view that the defendant has a propensity to re-offend or is deserving of "condign punishment" to deter it from committing further offences, it would be inconsistent with such a finding to conclude that the defendant was a good corporate citizen in the context of its responsibilities for occupational health and safety. 42 In considering a defendant's antecedents there are a number of relevant factors to be taken into account that may include: (1) The period over which the convictions occurred. It may be that there is such a significant gap between previous offences and the one under consideration that the Court might conclude that there is no propensity to re-offend and that the offender has, since the last conviction, made an effort to comply with its obligations under the Act. (2) The circumstances in which the prior offences occurred. They may have been so different to the one under consideration that no inference can be drawn as to propensity and, therefore, they should not be taken into account. (3) Subjective factors, including the period in which the defendant has operated as compared to its record; the nature of the industry in which the defendant operates (e.g., a dangerous industry involving significant risks and/or a multitude of risks); the size of the defendant (if it is a corporation) and the resources available to it to implement sound and effective occupational health and safety policies and practices. (4) Whether the circumstances of the prior offences shows an attitude of disregard or disinterest for the defendant's obligations under the occupational health and safety laws or, alternatively, despite the prior convictions, that these may be regarded as aberrations given the defendant's commitment to occupational health and safety evidenced by its policies and practices. 43 Comparing the present offences to those that led to the defendant's prior convictions, I do not consider there is any basis upon which to conclude the defendant has adopted a course of conduct in deliberate or careless disregard of adverse findings as to previous failures to comply with its obligations under the Act or has failed to take corrective action. The previous offences arose out of quite different factual circumstances to the present offences and occurred in diverse workplaces. 44 There is also no basis to conclude that the defendant's attitude to occupational health and safety is anything other than commitment to a safe work environment for all workers in respect of which it has a responsibility. 45 What is a matter of concern, however, is that the defendant has accumulated a relatively high number of convictions in a relatively short period of time; it is averaging close to two offences per year. This would suggest that despite the defendant's commitment to occupational health and safety that the size of its operations, the dangerous nature of the work carried out at the defendant's sites and the scattered nature of its operations involving remote sites is surpassing or exceeding its ability to effectively manage occupational health and safety. Staunton J touched on this problem when she said in WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited at [55]: If I had a view, it is that the diverse and scattered nature of its workplace requires particular initiatives to ensure that safe work practices are conveyed to employees in a way that ensures that the message is directly received, understood and applied in practice. 46 Whilst the size and nature of a corporate defendant's operations might be a factor to be considered in sentencing such that, for instance, operations in a dangerous industry might be a mitigating factor it has its limits. If a corporate defendant operates in a dangerous industry, or out of remote locations, or has a large workforce, its occupational health and safety policies need to be designed and administered accordingly. That is, in such a manner to ensure the safety of all workers. 47 I agree with Staff J that the defendant's antecedents preclude any discount on the grounds of good corporate citizenry. I consider the defendant's record reinforces the need to include in any penalty an element for specific deterrence. 48 It was common ground that the charges laid against the defendant arose out of the same facts and circumstances that also give rise to a charge against Paterson's. In Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326, a case involving offences by a labour hire company and its client for their respective breaches of sections 15(1) and 16(1) of the Occupational Health & Safety Act 1983, the Full Bench of the Commission in Court Session recognised the need for consistency in the sentencing of offenders where "the factual circumstances giving rise to the charges justify an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610 – 611." (at 341). 49 As the prosecutor submitted, however, there may be factors in the sentencing process that, when objectively assessed, support different outcomes for the offenders. Mr Cahill of counsel for the prosecutor identified the differences between Paterson's and the defendant as follows: In the present case: · The defendant is large, diverse industrial operation employing a significant permanent workforce across 3 states, as well as a substantial seasonal workforce; · The defendant has multiple prior convictions for breaches of the Act; · The defendant has been charged with counts alleging contraventions of both section 8(1) and 8(2) of the 2000 Act; and · The defendant faces two penalties of up to $825,000 each. By contrast, Paterson's is a modest, basically family transport business which had no previous convictions and faced a maximum penalty of $550,000.00. It is also relevant for the Court to have regard to the differing roles played by the defendant and Paterson's. In this regard, the prosecution notes that: · The subject incident occurred on premises occupied by the defendant; · The operation of the portable augur (sic - auger) that created the subject risk was under the effective control of the defendant; · The defendant should have been aware of the risk associated with the movement of a portable augur whilst the flight was raised and loaded with grain; · The defendant should have ensured that its employees had been provided with and maintained a safe work procedure for the handling and operation of the augur, including a proper safe procedure for moving the augur – including any movement of the augur whilst the boom or flight arm of the augur was charged with grain; · The defendant bore primary responsibility for the provision of an induction to visitors to its sites, including Paterson's truck drivers; and · The defendant should have ensured that its employees were aware that visitors to its sites were not to handle and/or operate any of the defendant's plant and/equipment, including mobile vertical augurs. 50 The Court should not disregard the penalty imposed on Paterson's when fixing the penalties for the defendant because the incident arose out of the same factual matrix underpinning the charges against both of the offenders. However, there is substance in Mr Cahill's submission that would lead the Court to the view that the need to apply the principle of consistency in the present case is very significantly outweighed by the subjective and objective considerations relating to the defendant as identified by Mr Cahill in his written submissions including the fact that the maximum penalties applicable to the defendant are $825,000 compared to Paterson's where the maximum was $550,000 and where, in this case, I have determined specific deterrence is an important consideration. 51 The totality principle is applicable here in light of the two overlapping charges brought against the defendant. In determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court is then to consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred: Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 at [36]; Abigroup Contractors Pty Ltd v WorkCover (Inspector Maltby) (2004) 135 IR 317 at [76]. 52 Having regard to the objective and subjective factors relevant to the charge under s 8(1) and taking into account the discount for the early plea I have determined that given the maximum penalty is $825,000 an appropriate penalty in this case is $170,000. I consider that the same penalty of $170,000 is appropriate for the offence under s 8(2) of the Act, noting that the discount and maximum penalty are the same as those in respect of the offence under s 8(1). 53 In arriving at the view the penalties should be the same, I have had regard to the particulars of each of the charges. There is considerable overlap in the failures alleged in the particulars but there are two material differences. Under the s 8(1) charge it was alleged that the defendant failed to provide and maintain a system of work that was safe and without risk to health in relation to the operation of the auger whereas in the charge under s 8(2), the failure alleged was a failure to maintain a safe system of work with respect to the loading of grain onto trucks at its depots, including the Boree Creek Depot. 54 In relation to the particular concerning the provision of supervision, information, training and instruction, the charge under s 8(2) alleged the failure related to both the work of loading trucks and the handling and use of the auger, whereas in the charge under s 8(1) the particular was confined to the handling and use of the auger. 55 It seems to me that, considering each of the charges as a whole, the defendant's culpability is roughly comparable in both cases and, accordingly, the amount of penalty should be the same. I noted earlier that Mr Stone had been seriously injured and the defendant's employee only slightly. I do not consider the penalty under s 8(2) should be significantly higher because of Mr Stone's injury, as the risk to safety from handling the auger was the same for Mr Stone as it was for Mr Widdup. 56 Applying the principle of totality, I consider the total fine should be $190,000. Orders 57 The Court makes the following orders: Matter No IRC 6035 of 2004 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $95,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No IRC 6036 of 2004 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $95,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.