Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Robert Wilkie v Susan Catherine Gordon and Inspector Robert Wilkie v Richard Edward Killen Gordon [2004] NSWIRComm 316 PROSECUTOR: Inspector Robert Wilkie PARTIES : DEFENDANTS: Susan Catherine Gordon and Richard Edward Killen Gordon FILE NUMBER: IRC 6746, 6747, 6748, 6753 and 6756 of 2002 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 1983 - s 15(10 and s 16(1) offences - guilty pleas entered - partnership conducting farming businesses - use of chemicals and hazardous substances in conduct of business - failure to provide or maintain a safe system of work in connection with the use, handling and storage of hazardous substances - failure to provide for an adequate risk assessment in the use and handling of hazardous substances - failure to provide adequate information and instruction in connection with handling and storage of hazardous substances - five separate charges - offences each considered to be serious but part of a course of conduct - principle of totality applied to adjust level of each penalty - subjective features considered - each defendant a first offender under the Act and active in community affairs - separate professional undertaking of each defendant considered - application to apply provisions of s 10 Crimes (Sentencing Procedure) Act 1999 - application rejected - penalties imposed. A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1 Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 at [82] Department of Mineral Resourves (Chief Inspector McKensey) v Berrima Coal Pty Ltd and anor (2001) 105 IR 348 Hunter Water Board v State Rail Authority NSW (No 2) (1992) 75 LGRA 22 (at 23) Shultz v Tamworth City Council (1995) 58 IR 221 at 229 CASES CITED : Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors [2004] NSWIRComm 194 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58 WorkCover Authority of New South Wales (Inspector Dawson) v Waugh & Thora Sawmilling Pty Ltd (1995) 59 IR 809 at 100 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (2003) 121 IR 283 at [55] HEARING DATES: 09/29/2004 DATE OF JUDGMENT: 10/29/2004 PROSECUTOR: Ms L McManus of counsel SOLICITORS: WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANTS: Mr H W H Bauer of counsel SOLICITORS: Moray & Agnew JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 29 October 2004 Matter No. IRC 6746 of 2002 Inspector Robert Wilkie v Susan Catherine Gordon Prosecution under s 16(1) of Occupational Health and Safety Act 1983 Matter No IRC 6747 of 2002 Inspector Robert Wilkie v Richard Edward Killen Gordon Prosecution under s 15(1) of Occupational Health and Safety Act 1983 Matter No IRC 6748 of 2002 Inspector Robert Wilkie v Richard Edward Killen Gordon Prosecution under s 16(1) of Occupational Health and Safety Act 1983 Matter No 6753 of 2002 Inspector Robert Wilkie v Richard Edward Killen Gordon Prosecution under s 15(1) of Occupational Health and Safety Act 1983 Matter No 6756 of 2002 Inspector Robert Wilkie v Susan Catherine Gordon Prosecution under s 15(1) of Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 316 INTRODUCTION 1 Susan and Richard Gordon have conducted a farming and grazing business in partnership since 1985 in and around the Young district of New South Wales. In 2000, their pastoral interests came to the attention of the WorkCover Authority following a report that contractors working at one of the properties operated by the partnership had become ill after handling sheep that had been chemically treated. Inspector Wilkie of the WorkCover Authority subsequently commenced five proceedings alleging breaches of the Occupational Health and Safety 1983: Susan Gordon was charged with a breach of s 15(1) and a breach of s 16(1) of the Act, while Richard Gordon was charged with two breaches of s 15(1) and one breach of s 16(1) of the 1983 Act. 2 All breaches were particularised in a similar way but covered different periods: Susan Gordon's alleged breach of s 15(1) referred to events on 27 November 2000 as did Richard Gordon's alleged breach of s 15(1). Each defendants' alleged s 16(1) breach referred to the period 27 and 28 November 2000, while Richard Gordon was charged with a further alleged breach under s15(1) on 18 December 2000. In due course, Amended Applications for Order were filed in each of the five matters and in general terms particularised the breach as follows: (a) a failure to provide or maintain a safe system of work in connection with the use and handling of a potential exposure to hazardous substances that was safe and without risks to health; (b) failure to make arrangements for ensuring the safety and absence of risk to health in connection with the use and handling of an exposure to hazardous substances particularly, but not limited to, failing to make arrangements for the provision of an adequate risk assessment in respect of the use and handling of an exposure to hazardous substances; (c) failure to provide such adequate information and instruction as were necessary for nominated employees and non-employees so as to ensure their health and safety at work in connection with the potential exposure to hazardous substances. PLEAS OF GUILTY ENTERED 3 Upon each Amended Application for Order being filed in Court, the defendants each entered a plea of guilty in relation to the charges brought against them. 4 At the hearing on penalty, the parties produced and tendered a substantial document setting out the Statement of Agreed Facts in relation to all matters involving both defendants. In view of the significance of the Statement of Agreed Facts it is appropriate to reproduce, omitting formal parts, the substance of that document: 2. At all material times Richard Edward Killen Gordon (the First Defendant) and Susan Catherine Gordon (the Second Defendant) were trading as Manton Grazing Company (Young), whose registered business address is situated at a property known as 'Manton', Temora Road, Young, in the State of New South Wales. 3. At all material times the First and Second Defendants were employers and carried on the business trading as Manton Grazing Company (Young) in partnership, for reward in connection with livestock raising including shearing of sheep and cropping of the land. They raised merinos, weathers [sic] and shorthorn cross steers ("the business"). 4. At all material times the First and Second Defendants employed Malcolm Lillie ("Lillie") and Allan Ross Peters ("Peters"). 5. On Monday 27 November 2000 Lillie and Peters commenced work at a property known as "Nungi", located at Fontenoy Road, Young, in the State of New South Wales ("Nungi"). The Directors of Nungi were the First Defendant's father and sister. The First and Second Defendants had an oral agreement with the Directors of Nungi to lease the property for the purpose of carrying on the business. 6. On 27 November 2000 at Nungi, Lillie performed duties involving wool rolling and classing. Peters performed skirting duties. The work was performed in connection with the shearing of sheep which took place inside a corrugated iron shearing shed ("the shed") at Nungi. 7. On the same day, the First and Second Defendants contracted Brett Downey ("Downey") to work as a shearer to shear about 2000 sheep in the shed. Downey brought with him David Garry McDonald ("McDonald") to assist in shearing inside the shed. 8. On 27 November 2000, Downey and McDonald arrived at the shed at about 7:00am and commenced shearing at about 7:30am. At about 11am McDonald started to dry retch and vomit. He left the shed and went to his car and slept until 3pm at which time Downey checked on him. McDonald returned to the shed and commenced shearing again. He was forced to stop shearing after shearing two sheep when he started to dry retch again. 9. On the evening of 27 November 2000 Lillie moved more sheep into the shed for shearing the following day. 10. On Tuesday 28 November 2000 Downey and McDonald returned to the shed to continue shearing duties. With them was Mark Gruber ("Gruber") whose duties on that day involved wool classing ("the shearing crew"). 11. Between about 7.00am and 7.30am when the shearing crew arrived for work they smelt an odour inside the shed which has been variously described as a "gassy smell", "unusual smell" and "similar to sulphur". Gruber stated that it was an unusual smell which he had not smelt before in shearing sheds. Lillie later suggested to the Prosecutor that the smell was Ectomort. Gruber checked the condition of the wool which he described as being damp and yellow/creamy in colour with a black tip. The smell was stronger at the back of the raised board and pens. 12. The shearing crew noticed several drums near the door inside the shed. Both Gruber and Downey stated that Lillie informed them that one of the drums contained the chemical Diazinon. A drum had a hole in the lid. Gruber observed numerous other chemicals inside the shed including a 5-litre pack of Vetrazin. 13. When interviewed by the Prosecutor Lillie stated that he had not used Diazinon at Nungi since about 1994/1995. 14. Shortly after the shearing crew commenced work, McDonald stated that he started to dry retch and vomit in the shed. He experienced a headache, burning eyes, burping and a bad taste in his mouth. His symptoms forced him to stop work. 15. Downey stated that he then commenced to dry retch. He experienced a headache and burning eyes, heartburn and a bad taste in his mouth, which he described as a "sulphur-like taste". He had been feeling off-colour overnight. 16. Downey stated that both he and McDonald were in the pen dry retching. McDonald stated that he saw Downey dry retching so both men stopped work. 17. Gruber stated that he observed McDonald and Downey dry heaving. 18. Gruber stated that at about 8.15am he experienced a burning in his chest, constant burping, dry retching and burning eyes. He also could not continue work because of his symptoms. 19. Downey and McDonald went outside the shed and observed Gruber and another worker vomiting. Downey stated he could not continue working because of his symptoms. 20. The shearing crew waited for Lillie to return to the shed which he did about 9.00am. Lillie told the shearing crew that some of the sheep had been jetted (sprayed by hand with a spray wand) in about the second week of October, 2000. 21. At approximately 9.30am on 28 November 2000 Downey and McDonald left Nungi and went to Young to seek medical treatment. They were examined by Dr Hamilton-Gibbs. Gruber was examined by Dr Paul Sevier the following day. 22. On 28 November 2000, Dr Hamilton-Gibbs notified WorkCover of what he considered to be a possible chemical contamination involving Downey and McDonald. 23. Subsequently, blood and urine samples were taken by Dr Kurmath in Temora, New South Wales. The samples were received by the WorkCover laboratory on 15 December 2000 and analysed. The test results confirmed the presence of inorganic arsenic in urine samples taken from both Downey and McDonald and the presence of organophosphate in the urine sample taken from Downey. 24. A urine test on 15 December 2000 for Downey showed organophosphate pesticide exposure namely Dimethylthiophosphate (DMTP) (20 umol/mol creatinine) and Dimethyldithiophosphate (DMDTP) (25 umol/mol creatinine) and inorganic Arsenic (11 umol/mol creatinine). 25. McDonald's urine test results on 15 December 2000 showed inorganic Arsenic (25 umol/mol creatinine). Tests on McDonald on 1 January 2001 and 3 January 2001 showed arsenic in urine (25 umol/mol creatinine). 26. The urine test on McDonald and Gruber did not show organophosphate pesticide exposure. 27. Blood tests taken from the shearing crew showed no suppression of Cholinesterase. Cholinesterase is a reasonable measure of one aspect of organophosphate injury. However the diagnosis of chronic organophosphate symptoms after exposure is a clinical diagnosis rather than a laboratory diagnosis. 28. Downey has stated that he is presently unable to undertake heavy physical work. He has consulted a doctor on approximately 20 occasions and suffers ongoing headaches, periodically feeling nauseous and has pain in his ankles and knees. 29. McDonald returned to work in October 2001. He has consulted a doctor approximately 15 to 20 times. He stated that he suffers ongoing headaches (centred behind the eyes), joint aches when performing physical work, bad taste in the mouth, heartburn, reflux, nose bleed and diarrhoea. 30. Gruber has only undertaken approximately six months work since 28 November 2000. He has consulted the doctor approximately 15 to 20 times. He stated he is currently on sickness benefits and suffers headaches (behind the eyes), backaches, kidney pain, pain in the joints, chest pain, stomach cramps, continual bloodshot and yellow eyes and diarrhoea. 31. WorkCover Inspectors attended Nungi on 18 December 2000 and conducted an inspection of the property. A sample was taken from a container labelled as 'Vetrazin', which was located on the back of a white Triton 4WD utility, registration no. TON-615, owned by the First and Second Defendants. This sample tested positive to the organophosphate Propetamphos. Vetrazin's active ingredient is the chemical known as Cyromazine. It does not contain the ingredient Propetamphos. Propetamphos is the active ingredient in Ectomort. 32. During the WorkCover inspection, Peters told the Prosecutor that he had been spraying the sheep with Diazinon. He pointed to the container on the truck labelled "Vetrazin" as the source of the spray treatment. Diazinon is also an organophosphate and is not an ingredient contained in Vetrazin. 33. During an interview with the Prosecutor on 26 August 2002, Peters said that prior to 28 November 2000, the sheep at Nungi were administered Propetamphos once and Vetrazin once. Peters said he mixed chemicals together (namely, Ectomort and Vetrazin) and sprayed the sheep with the mixture. 34. The First and Second Defendants also arranged for two tests on the wool shorn by the shearing crew at the property on 27 and 28 November 2000. These tests were conducted by CSIRO Wool and Fibre Technology. 35. The first test identified Cyromazine in the wool. The result was sent to the WorkCover Authority on 5 March 2001. The second test was derived from 20 core samples taken from the bale of wool that was shorn on 28 November 2000, the results of which were acquired after a section 62 Notice was served on the First and Second Defendants. This test also identified Cyromazine in the wool but in addition it identified the organophosphate Diazinon at a level of 0.2mg/kg. 36. On 26 March 2001 the WorkCover Laboratory Service Unit received samples taken from a water tank at Nungi and from soil inside the shute [sic] and race which had been used for treating the sheep at Nungi. These samples when tested detected Propetamphos (the active ingredient in Ectomort) and Diazinon in the soil sample taken from the shute [sic] and race. The race was where the sheep entered the shed (...) and the shute [sic] was where the sheep exited the shed (...). Arsenic was detected in the race and shute [sic] soil samples as well as in the sludge of the water tank. No arsenic was detected in the tank water or the water in an urn in the shed. 37. Both Downey and McDonald stated that they washed their hands with water from the tank before eating on 27 November 2000. 38. Propetamphos is an organophosphate pesticide and is the active ingredient of a chemical having the trade name "Ectomort". The First Defendant purchased quantities of Ectomort on 31 December 1996 at a cost of $860.00. A Material Safety Data Sheet ("MSDS") dated 29 January 1999 for Ectomort (was before the Court). One of Ectomort's active ingredients is Propetamphos. Propetamphos is listed in the National Commission's List of Designated Hazardous Substances. It is described there as toxic and having, "very serious irreversible effects in contact with skin and if swallowed". 39. Diazinon is an organophosphate insecticide. It was used in general pest control and agriculture. It was used in dips and drenches for sheep and in flea control on domestic animals. The use of Diazinon has been associated with a high incidence of acute poisoning (that is symptoms can occur within a short period of time from exposure). 40. Organophosphate pesticides and arsenic (inorganic) are both listed in Column 1, Schedule 1 of the OHS (Hazardous Substances) Regulation 1996 as hazardous substances for which health surveillance is required. 41. Health surveillance must be provided for any employee who has been identified, as part of a workplace assessment process, as having a significant risk of exposure to a scheduled hazardous substance under the Hazardous Substance Regulation 1996. 42. Vetrazin is the trade name of a product which has an active ingredient known as Cyromazine. It is used as a fly strike preventative on sheep. It is used as a spray in sheep blowfly treatment. (Before the Court was a copy of) the MSDS for Vetrazin. It is a hazardous substance according to the criteria of Worksafe Australia. Although it is characterised as a hazardous substance by Worksafe Australia the MSDS suggests that it has an overall low toxicity. 43. Neither Peters nor Lillie had received any instructions in relation to the MSDS pertaining to Ectomort (entitled "Ectomort Plus Lanolin Sheep Dip"). In fact both first saw that particular MSDS after 28 November 2000. The shearing crew comprising Downey, McDonald and Gruber had not read or seen any documentation or had explained to them the nature of any chemicals with which they may come into contact during the shearing work inside the shed at Nungi. 44. The First and Second Defendants did not obtain an MSDS for Vetrazin until 30 November 2000. 45. On 18 December 2000 during the WorkCover inspection it became apparent that certain chemicals, namely organophosphates and vetrazin were being mixed together and then decanted into one container labelled 'Vetrazin'. This practice resulted in the incorrect labelling of hazardous substances. The First and Second Defendants had no or no adequate system in place to ensure stored chemicals were correctly labelled. 46. The First and Second Defendants did not, at the relevant times, keep any records or register or other documentation in relation to accountability and correct labelling of chemical substances. On 4 April 2001 the First Defendant handed in chemicals to Chemcollect NSW. Chemcollect NSW was a project jointly funded by the Commonwealth and NSW Governments to clear farms of unwanted chemicals. A number of the chemicals handed in by the First Defendant were described as "unknown" or "pesticides general" or "herbicides". Lead Arsenate and Arsenic was also handed in. 47. The First and Second Defendants at no time engaged in any consultation with the employees in relation to any likely exposure to risk of injury arising from hazardous substances used in the workplace or any requirements (for example, for health surveillance) concerning any hazardous substances used in the workplace or any risk assessments or need for training or information. 48. No training instruction or information was provided to the employees by the First and Second Defendants or to the shearing crew in relation to the safe use and handling of hazardous substances prior to them commencing work in the shed at Nungi. 49. As a result of the investigation into this accident, several improvement notices were issued in relation to: i. failure to provide appropriate training and induction in the use of hazardous substances; ii. inadequate assessment of hazards relating to the storage, use and handling of hazardous substances; iii. inadequate information being kept on hazardous substances; iv. failure to keep adequate and appropriate records related to hazardous substances; v. exposure to organophosphates and subsequent failure to provide health surveillance; vi. use of hazardous substances which are not adequately, appropriately or correctly labelled; vii. failure to provide or supply an MSDS; viii. failure to control, eliminate or substitute the use of hazardous substances; ix. unsuitable, inadequate or inappropriate supply of Personal Protective Equipment ("PPE"). 50. The First and Second Defendants have since undertaken training and induction in the use of hazardous substances with their employees. All MSDS have since been obtained for all chemicals used at the place of work. Storage of chemicals is now in a well-ventilated and secure area and is sign-posted to indicate the presence of such chemicals. Each worker now has their own personal protective equipment. 51. The First and Second Defendants fully co-operated with WorkCover and its inspectors. 52. The First and Second Defendants have no prior convictions. 5 In addition to the Statement of Agreed Facts, the prosecutor tendered a Factual Report and a bundle of 16 photographs showing the area where various hazardous substances were kept and their immediate surroundings. The Court also had before it two "Material Safety Data Sheets" referred to in the Statement of Agreed Facts. EVIDENCE FOR THE DEFENDANTS 6 Both defendants submitted affidavit evidence dealing with the nature of their pastoral interests, their other business interests, their involvement in the promotion of safe working in rural industries and steps taken since the incidents which occurred in November and December 2000. Susan Gordon had trained as a nurse in the mid-1970s and had undertaken various nursing duties, achieving the status of Charge Sister. She married Richard Gordon in December 1980 and their first child was born in 1983 - they had three children. Mrs Gordon had additional safety-related qualifications of hygiene for food handlers obtained in December 2000 and managing farm safety obtained in July 2001. She was involved in a number of charitable organisations and held office in a significant number of community bodies over many years. 7 She stated that with her husband they operated a farming and grazing business in partnership and owned a property at Young known as "Manton" consisting of 1,000 hectares of grazing country where they ran 7,000 merino sheep and 600 beef cattle. There were two other properties which were leased from Mr Gordon's sister, a 360 hectare property for grazing "dry" sheep and cattle, and a 600 hectare property used to graze "dry" sheep and cattle together with a share farming of winter cereals and other crops. 8 Stock was moved between these properties in the course of improving them. In relation to the shearing that was to take place in November 2000, it was considered the facilities at the "Nungi" property were superior in terms of shearers safety and comfort. 9 Prior to marrying, Mrs Gordon had no formal training and very little involvement in the practical running of farms or grazing properties. She relied extensively on the advice and assistance of her husband and of experienced employees in the operation of their business over the years. She regarded herself as having a good grasp of the practicalities of working in a farming business from growing up on a property in the Riverina district and spending a year working with her family in 1976 - 1977. In 1986, Mrs Gordon undertook a course on record keeping which was part of the farm secretarial course offered by Orange Agricultural College. Since then, bookkeeping had been her responsibility for the businesses in which they were involved including all the taxation and business activity statements. 10 At the time of the November 2000 incident, five people were employed in both businesses and at the present time there were four employees. In November 2000, the five employees had the following experience: two had six years' work with the defendant, one had three years' work experience with the defendants and two had one year's experience of that nature. Mrs Gordon stated that these employees had significant experience in the grazing industry over a number of years and she and her husband had come to rely heavily on their "invaluable" experience in the operation of the business. The nature of their employees' experience was set out in some detail in the affidavit. It was also said that, because of the small nature of the business its employees had always been available and had availed themselves of the opportunity to discuss with Mr or Mrs Gordon any matter they felt appropriate and they had full access to the office and house for recording of relevant information. There was often sharing of publications that the defendants thought of educational advantage to their employees. 11 Mrs Gordon stated there was a commitment to occupational health and safety and that during the early 1990s farm safety awareness days were conducted by community health nurses at the Young Agricultural Show. As a result of attending these days, personal protection equipment was purchased and the employees were instructed to wear appropriate gear for the type of work being performed, whether jetting sheep, angle grinding, welding, etc. They were told to replace gear as needed and to purchase on the defendants' account whatever was thought to be needed. These matters were raised as part of general discussion in an informal environment with no documentation kept by the defendants. Mrs Gordon regarded shearing shed cleanliness as being high on her priorities and she often assisted in the cleaning of the shed to acquaint herself with the standard of cleanliness required. She also thought this would set a good example and offer a clean and comfortable shed to shearers who would perform better in such surroundings. Mrs Gordon had participated in a "think tank" on farm safety: she had participated in the discussion and had made some suggestions. Her interests in the subject had been heightened by the loss of her brother and his employee due to a farm accident in the Riverina in 1991. However, it never occurred to the defendants to have a "policy and procedure" document, as that appeared to represent the methods of the corporate world where employees come and go and there is a need to ensure that every person is given and receives the same message. It did not seem important to the defendants to take this approach given the close contact they had with their employees. 12 Following the November 2000 incident, the defendants and their employees attended a variety of training sessions and workshops dealing with farm practices including safety workshops and a chemical user course. In addition a number of modifications and improvements were made incorporating a number of safety devices. The defendants had also informed other farmers of their experiences and how easy it was to "get into trouble". This included a two hour workshop on farm safety where the defendants retold their experiences and provided information from Farm Safe Australia dealing with a variety of subjects including farm chemicals and woolshed safety. Information was reproduced concerning managing farm safety, risk assessment/management, a check list for identification of hazards and an action list for fixing identified hazards. A sample chemical inventory was produced and Mrs Gordon obtained from WorkCover a summary of the Occupational Health and Safety Act 2000 and its regulations, the Code of Practice for the safe use and storage of chemicals and chainsaw safety. There were a number of other groups identified where this information was passed on by the defendants. 13 Mrs Gordon said that the biggest change for the defendants had been in their management practices since undertaking holistic resource management training. The defendants were slowly reducing their reliance on farming chemicals and were relying on the impact of grazing management to solve problems and improve the land and soil upon which they relied for their income. However, the defendants still required the use of veterinary chemicals and medication. 14 The defendants had reviewed the way in which they dealt with contractors such as shearers following the incident in November 2000. The defendants now advise their chemical spraying contractors to do the chemical user course and require them to fill out their inventory if they take chemicals out of the farm shed and fill out the register as to and when the chemical was applied and the prevailing weather conditions. Shearers are given a brief induction as to the defendants' expectations as to appropriate shed practices prior to the commencement of shearing. 15 Mrs Gordon frankly stated that, prior to the incident, little was known by the defendants of occupational health and safety although it was known that there was new legislation being introduced. Farm safety was talked about in generalities and was accepted as a good thing but detail was lacking. They had never heard of a "Material Safety Data Sheet" (MSDS) until Inspector Wilkie had raised their availability following the incident. The defendants then contacted their local member who supplied them with a list of legislation affecting farmers which amounted to some 60 statutes, but did not include the Occupational Health and Safety Act. They were aware that the New South Wales Farmers Federation had stated that there were approximately 300 pieces of legislation that affected the type of business they operated. Their knowledge had greatly increased about legislative obligations and the defendants now took an active role in complying with legislative requirements and drawing it to the attention of others in the pastoral and grazing industries. In that regard, the defendants had spent their own money in travelling throughout the community and producing documents to raise awareness in the farming and grazing community. 16 Mrs Gordon spoke about the personal impact and anxiety flowing from the incident and the institution of these charges. The defendants had spent thousands of dollars complying with their obligations and felt that they lacked direction for approximately two years after the incident. They had reacted to situations instead of being proactive in decision making. They found the practical task of writing a risk assessment very difficult as there were no examples available to assist them. They had endured substantial increases in workers compensation premiums and strategies to try to reduce those costs. There had been a seven year wage audit conducted in February 2003, and the amalgamation of the two businesses, which was both time consuming and trying. It was pointed out that the aborted shearing in November 2000 resulted in the death of 198 sheep. The delay between the arrival of the sheep at "Nungi" and the commencement of shearing eventually resulted in "Nungi" being infested with Bathurst burr, and their desire to co-ordinate the commencement of shearing with the arrival of the sheep from the other property had been frustrated. 17 The defendants both deeply regretted the incident and had taken every step to ensure that it did not occur in the future. They had disposed of a number of chemicals stored on the farm which had been in use from the time Mr Gordon's father had operated the property. Until the incident, they had not appreciated the risk the chemicals might pose to people and they did not know of their existence until the clean-up following the incident. In this exercise, they had co-operated with the WorkCover Authority investigations. 18 In his affidavit, Mr Gordon spoke of growing up in the Young area, moving away for education and military service and returning in 1984 at the age of 35. He was a registered chiropractor who obtained his professional qualifications in 1974 and 1984. Before his National Service and tour of duty in Vietnam he had worked as a jackeroo. He had undertaken farm management training and returned to work on the family farm until returning to full time chiropractic studies. He purchased the chiropractic practice at Young in 1984 and since that time had operated the practice in Young while servicing the towns of Grenfell and Boorowa. He practised on his own as a chiropractor trading in a business partnership with his wife. There were only two chiropractors in the area and Mr Gordon serviced a wide community. He had been obliged by the requirements of professional associations to advise them of the fact that he had been the subject of a criminal conviction with a potential for his registration as chiropractor to be cancelled or conditions to be imposed upon his registration. 19 Mr Gordon explained how he had engaged Mr Downey, who was a patient, to shear his sheep. Mr Downey was a shearing contractor and had asked for work. On 27 November 2000 Mr Downey had turned up for work with two other persons instead of the four required for the work. Mr Gordon used two of his permanent employees, Mr Lillie and Mr Peters, to make up a proper team, and he was present with them when they discussed the task of shearing which involved many sheep who had been struck with maggots. The sheep had been jetted some seven weeks earlier with Vetrizin but this had been ineffective after approximately 170mls of rainfall, and many sheep died of fly strike. The shearing continued throughout the day in weather that was hot and inclement - the shed smelt of ammonia from sheep being shedded overnight. Mr Gordon spoke on the telephone that night to Mr Lillie and Mr Downey but neither suggested there was any problem with the workplace. 20 Mr Gordon was not present on the morning of 28 November 2000 and felt no need to be as he expected work to continue from the previous day. Mr Lillie was his representative but he did not work in the shed that day as he was involved in preparing the sheep away from the shed. He was told by Mr Lillie that when he returned to the shed the shearing team had stopped work and were complaining of sickness but had not moved outside into the fresh air. Records indicated that 13 sheep were shorn that morning. 21 By 18 December 2000, the shearers had not returned to complete the job and the sheep were dying of fly strike. On that morning, Mr Gordon instructed Mr Peters to treat the struck sheep with Ectomort. There was a 20 litre container of Ectomort at his "Manton" property and, unbeknown to the defendants, Mr Peters decanted a small amount into a five litre container of Vetrazin. Although they were different chemicals, they were both used in the treatment of fly strike in sheep and in its prevention. The chemical was later diluted and applied to the affected areas of the sheep. During the course of the morning, Inspector Wilkie indicated that he would come to "Nungi" shed with the shearing team and another WorkCover representative. Mr Gordon was unable to leave his work and so his wife, Mr Lillie and Mr Peters met the Inspector. As a result of this inspection, on 14 February 2001, the defendants received nine improvement notices giving varying lengths of times in which to comply. There was a follow-up by WorkCover around September 2002. Mr Gordon expressed his deep regret for the incident and stated that he had endeavoured with his wife to ensure no such incident occurred again. 22 The defendants had forwarded wool samples from the sheep being shorn in this incident to CSIRO Textile and Fibre Technology for report and analysis. Two reports from that body were tendered by the defendants. The first report dated December 2000 stated that the only pesticide found at detectable levels in the samples was Cyromazine at a level of 1.8mg/kg on the wool. The report stated that the average level of Cyromazine in the Australian wool clip in 1999/2000 was 5.1mg/kg and that given that it was found only in about 25 per cent of the clip, the average levels of Cyromazine in treated sheep would therefore be 20mg/kg. The report stated that there was no history of problems with Cyromazine and it was unlikely to be the cause of the reactions which incapacitated the shearers. A later report dated October 2003 re-checked the analysis of certain samples. After referring to these samples the report stated that the wools submitted by the defendants, judged by the samples provided, contained residues that were lower than the average when treatments containing Diazanon or Cyromazine had been applied to sheep in Australia. The author was unable to comment on the possible effects on human health of these treatments given the information and material in hand. 23 A large number of references and testimonials were tendered which spoke of the defendants as having a highly regarded reputation in their community as well as being active in the affairs of the community. Those documents also spoke of their commitment to good farming techniques and their attention to appropriate farming and grazing techniques as well as the care they had shown for the safety of their employees and people working on their properties. Other references spoke highly of Mrs Gordon's activities in charitable organisations. Mr Peters wrote of his experience as an employee of the defendants since 1992 and how they had provided for him to undertake a chemical course and a chainsaw course. He spoke of working on the land for 40 years and being conscious of all safety aspects but had never experienced any side effects or illness from chemical or animal health products while working for the defendants. THE SUBMISSIONS 24 The prosecutor confirmed that the maximum penalty in each case was $55,000 and that neither defendant had a prior record in relation to occupational health and safety or related legislation. In this case a relevant consideration was the positive obligation on management to inform itself of circumstances of safe working (WorkCover Authority of New South Wales (Inspector Dawson) v Waugh & Thora Sawmilling Pty Ltd (1995) 59 IR 809 at 100). 25 In these cases the risk was said to be readily foreseeable: that risk being exposure to hazardous substances. The chemicals had not been stored safety and there were a number of chemicals in the shed, one with a hole in the lid. There was no risk assessment in respect of the use, handling and exposure to hazardous substances in relation to the use of chemicals as supplied, the use of chemical in combination with other chemicals and the interaction of chemicals in proximity to each other. No consultation had taken place with the employees in relation to any likely exposure from the hazardous substances or the requirements concerning any hazardous substances used or risk assessments or the need for training and information. No MSDs had been provided to the employees or to the contractors. No training, instruction or information was provided to employees or to the contractors in relation to the safe use and handling of hazardous substances prior to commencing work in the shed. No information was provided to contractors about the nature of any chemicals with which they may come into contact while working in the shed. There was no record or register or any other documentation kept in relation to accountability and correct labelling of chemicals. 26 In relation to Mr Gordon's offence on 18 December 2000, the chemical used to spray the sheep was in a container labelled Vetrazin but did not contain that substance but another hazardous substance, Propetamphos. The defendant had no adequate system in place to ensure that stored chemicals were correctly labelled and there was no risk assessment in respect of the use, handling or exposure to hazardous substances in relation to the use of chemicals as supplied and the use of chemicals in combination with other chemicals. No MSDs were provided to employees and the MSDs for Ectomort (of which Propetamphos was an ingredient) identified acute effects to the eyes and that it was likely to be absorbed through the skin and be toxic by skin absorption. The only protective clothing available with the work vehicle were red rubber gloves. The MSDs for Ectomort listed the recommended protective clothing as including elbow length PVC gloves and protective eye wear. A dust mask or respirator was also recommended. Further, the Inspector saw the employee eating without washing his hands after he had been spraying sheep with the hazardous chemical. 27 There were simple and straightforward steps available to remedy the defects in the system. Those steps included establishing a safe system for the use, handling and potential exposure to hazardous substances; establishing the safe storage of hazardous substances including storing in an appropriate place, correct labelling, keeping adequate and appropriate records; conducting risk assessments in relation to the storage, use and handling of hazardous substances; obtaining the appropriate MSDs and other information and providing relevant information and instruction to employees and contractors in relation to hazardous substances; and ensuring the safe use of hazardous substances including ensuring the chemicals were not mixed without full knowledge of the effects of mixing chemicals, and ensuring chemicals were not decanted into containers of different chemicals, together with the supply and use of personal protective equipment. 28 It was accepted that since the accident the defendants had undertaken a number of steps relating specifically to the offences. Those steps included the construction of a lockable chemical storage facility; ensuring that the chemical spraying contractor fills out an inventory if chemicals are removed and used; the undertaking of training and induction in the use of hazardous substances; ensuring that employees have undertaken training and induction in the use of hazardous substances; obtaining all MSDs for chemicals in use at the place of work; and each employee being supplied with their own personal protective equipment. 29 In relation to the injuries sustained, the prosecutor pointed out that the offences, as drafted, alleged a risk to safety which was likely to result in serious consequences namely injury arising from the exposure to hazardous substances. The consequences or injury would depend on the actual chemicals or combination of chemicals to which a person was exposed. In oral submissions the prosector made it clear that this was not a case where the actual injury suffered by the workers manifested clearly the risk because the prosecutor was not in a position to say which particular chemical or which particular chemical action caused the reaction and injury to the workers. 30 It was accepted by the prosecutor that the pleas of guilty were entered at an early stage after the prosecutor filed Amended Applications for Order. In those circumstances it was conceded that the utilitarian value of the plea would be at the higher end of the scale of discount. 31 For the defendant it was pointed out by reference to the content of the MSDs that the mixing of chemicals occurred in circumstances where they were compatible and were used together for fly strike in sheep. The basic complaint relating to 18 December 2000 was the fact that the chemical was placed in a container which was not properly labelled. 32 In relation to the effects suffered by the shearers on the first day, it was pointed out that although Mr Gordon spoke to Mr Lillie on the evening on 27 November 2000 there was no mention of any problem. On the following day the defendants' employees were no longer required to bolster the shearing team and they performed their usual duties elsewhere. The shearing on the morning of 28 November 2000 was brief with only 13 sheep shorn before the shearers became distressed. No further shearing was conducted that day or until much later, after 18 December 2000. The sheep remained in the area subject to increasing fly strike and the evidence showed that a large number died. 33 In relation to the keeping of records and chemical stores, the material showed that three sets of records were kept in relation to sheep, cattle and agricultural activities although it was accepted that there was no separate record of actual and precise usage of chemicals as there should have been. The chemicals were basically kept at the 'Manton' property which was the principal place of residence and the major property in a dedicated shed for animal husbandry chemicals and for cropping chemicals. The defendants had taken the step of referring samples of the clip to the CSIRO to see if the chemicals in the wool had caused the reactions suffered by the shearers. That report makes it clear that the clip was not the cause of the shearers' distress and in fact the wool on this property was well below the national average for containing the two substances Diazinon and Cyromazine. 34 In light of the general care taken by the defendants of their property and also having regard to the strenuous efforts they had made to address the use and storage of chemicals, there was little need for specific deterrence to play a significant role in the penalties in this case. The defendants had undertaken self education, they had undertaken occupational health and safety education, they had trained their employees, they had attended chemical users courses and had asked their contractors to do the same. They had paid for their employees to attend various courses, they had improved their facilities, they had assisted their neighbours and had conducted workshops in the region and in this respect had taken all the responsibility of informing the community in which they lived of what is necessary in relation to work safety. The references demonstrated the level to which the defendants had gone about revising their work procedures. 35 It was submitted that this was an appropriate case for the Court to exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act. Section 21 of that Act deals with mitigating factors and in this case it was to be pointed out that the offences were not part of a planned activity, that the defendants did not have any relevant record, they were persons of good character and were unlikely to re-offend. There had been a plea of guilty and assistance had been provided to the authorities. Here, in judging the objective seriousness of the offence, the plea of guilty was effectively concerned with "methods and failures" - there was inadequate control of the chemical storage which had now been rectified and they were held in the new shed which had been approved the WorkCover Inspector in 2002. The defendants had placed great reliance on long term and experienced employees and while that did not excuse their omissions they had the assistance of very experienced workers. What needed to be considered was the fact that there were chemicals stored, there were lock up sheds at "Manton" and chemicals were not normally kept at "Nungi". There were some records kept of chemical use but not to the level and detail necessary. 36 The discretion of the sentencing Court under s 10 of the Crimes (Sentencing Procedure) Act was wide. It was accepted that cases in which the discretion will be exercised will be rare but where a discretion is not exercised in any reasonable way by the Courts then it is no longer a discretion and becomes merely words in the judgment. The rarity of the use of the discretion did not mean the discretion should be approached on the basis that it would never be exercised although an appropriate case has to be made out: this case was such an appropriate case. 37 In relation to extenuating circumstances three matters were relied upon. There was an unusual level of fly strike and it rained in the area requiring treatment at Nungi. The employees of the partnership were long term, experienced rural workers of undoubted competence. The chemicals were normally found in the shed and were normally kept in the chemical store at the "Manton" property. Further, there were strenuous efforts taken by the defendants to rectify their lack of knowledge by training themselves and their staff. Lastly, there was their expression of regret for the incidences giving rise to the charges. Another matter of relevance was the strenuous effort made by the defendants to inform the community and other farming and pastoral interests of their occupational health and safety responsibilities including at their own expense and using their own time. The defendants were supported by their community as the references indicated and they had suffered financial detriment and personal anguish as a result of the incident in November 2000. Both defendants were concerned about a criminal conviction - they were both professional people and they were both required to advise their registration boards of any conviction. They were anxious to avoid a blemish on their outstanding character and they asked the Court for its indulgence in the making of an appropriate order under s 10. DELIBERATION 38 In assessing an appropriate penalty for a breach of the Act it is accepted that the starting point is a consideration of the objective seriousness of the offence. The Agreed Statement of Facts and the prosecutor's analysis of those facts demonstrates a disturbing level of ignorance amongst the farming and grazing community of their obligations under the Act and a low level of understanding of what is required in the storage, handling and use of chemicals and hazardous substances. Indeed, by their plea of guilty the defendants have accepted that the breaches have many aspects: a failure to store chemicals safety; the absence of a risk assessment in relation to the use, handling and exposure to hazardous substances; the failure to consult with employees as to their likely risk from using the substances and the requirements concerning the use of those substances; the lack of training, instruction and information in relation to the safe use and handling of hazardous substances; the lack of information as to the nature of the chemicals being used and the absence of appropriate records and documentation as to the nature of the chemicals purchased and stored, their use and circumstances of the use, and, failure to correctly label chemicals. 39 Notwithstanding the defendants' apparent good husbandry of the land in other aspects of their pastoral activities, these specified acts and omission establishes the serious nature of the breaches to which they have pleaded guilty. It is also significant that MSDs were not suppplied to employees or contractors in relation to the chemicals they were required to use and indeed the defendants were unaware of the existence of MSDs until so informed by the Inspector. It is undoubtedly correct that for generations the skills required for managing and operating a farm were acquired by experience initially obtained within the family. For many years however farming activities have, like other undertakings, been subject to growing sophistication of approach and the availability of much more information to assist those participating in rural enterprises. It could hardly come as a surprise to persons experienced in owning and operating a property, as were these defendants, that it would be inherently dangerous to keep old and difficult to identify chemicals and inappropriate and dangerous to store them insecurely or to fail to monitor their use or ensure that employees and contractors alike were properly attired when using the chemicals. The rudimentary records kept by the defendants was at least some acknowledgement of these matters: the proper steps were not difficult to ascertain nor were they difficult to implement. 40 In concluding that these were serious breaches I nevertheless note the concession made by the prosecutor that it was, in essence, unable to identify precisely what it was that brought about the adverse reactions felt by the shearers working on the defendants' property in November 2000. The CSIRO report indicating that in relation to two chemicals the levels found were well below the Australian average leaves unresolved the precise cause of the adverse reaction suffered by the shearers. While that incident prompted the Inspector's investigation, inspection of the property revealed the systems failure particularised in the offences. It is in relation to those system failures that penalties will be assessed and imposed. 41 It was accepted by the defendants that general deterrence was an aspect necessary to be considered in the setting of an appropriate penalty. The evidence in this case demonstrates a worrying level of unawareness in rural areas of obligations under the Occupational Health and Safety Act generally let alone with regard to the safe storage and use of hazardous substances. The Court notes the steps taken by the defendants following the November 2000 incident to inform themselves of these obligations and their praiseworthy efforts to inform the wider rural community about these matters because of their own perception of the low level of community awareness. It was submitted for the defendants that the extensive steps taken after this incident resulted in there being little room for considerations of specific deterrence. The defendants were however trained professionally in areas where the danger of storing and using hazardous substances would be well appreciated and where their standard of education was such that they were well placed to make appropriate enquiries as to how hazardous substances should be handled in the operation of their pastoral interests. The evidence showed that they were regarded as diligent in the husbandry of the land but, almost inexplicably, they were lax in relation to the use and storage of hazardous substances. While it is appropriate to take into account the extensive steps taken since the incident involving the shearers, there continues to be a role, albeit a reduced role, for specific deterrence in setting an appropriate penalty. 42 As to subjective factors, the defendant entered a plea of guilty on the day on which the prosecutor filed an Amended Summons in each case. Although there was some debate about it I am prepared to accept that this was a sufficiently early plea to attract the maximum discount of 25 per cent. 43 The defendants had been operating their pastoral interests in partnership since the mid-1980s and have no relevant record of prior convictions. Over the years they have been employers of a modest number of employees and have had the usual use of contractors as this case demonstrates. Having regard to the dangers which often attend the running of a farm it may readily be accepted that the defendants have a good safety record. There was an abundance of evidence as to the defendants' participation in the local community and often in leadership roles. Their good citizenship is taken into account including the efforts they have voluntarily undertaken to inform the farming and grazing community of their obligations under the Act. The drain on financial resources resulting from this incident and the cost of implementing procedures for the safe storage and use of hazardous substances are an indication of the defendants' contrition and commitment to continuing occupational health and safety. In relation to these matters the defendants should receive a further discount of 10 per cent bringing the total discount to 35 per cent. 44 Having regard to the fact that, apart from the dates upon which the offences occurred, each offence is particularised in substantially the same way I would treat each of the breaches as being of equal seriousness. I am unable to accept the prosecutor's submission that Mr Gordon's further breach of s 15(1) on 18 December 2000 was a more serious breach. That breach occurred some three weeks after the incident involving the shearers and appears to be more appropriately categorised as a continuing course of conduct rather than an aggravating breach having regard to previous conduct. After taking into account the discount earlier identified I would, in all the circumstances of these cases, impose a fine of $8,950 in relation to each offence. 45 These penalties then need to be considered against the principle of totality. A Full Bench of the Court recently re-stated the application of the principle in the context of the operation of the Occupational Health and Safety Act and multiple offences under both sections 15 and 16. In Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) [2004] NSWIRComm 270 at [82] the Full Bench stated that the application of the principle of totality was to ensure that the defendant was not punished more than once for multiple offences and in the cases a number of considerations had been held to be relevant including (a) whether there was a considerable overlap between the failures charged in the offences; (b) whether there was any overlap of culpability or criminality of the defendant arising from both convictions; and (c) whether the offences arose from the same set of facts and whether the gravamen of the offences was essentially similar. In these cases the offences are particularised in an almost identical manner covering both sections 15 and 16 of the Act. The evidence suggests that the offences arose through a course of conduct adopted by the defendants with the accumulation of chemicals over a number of years as the properties passed between members of the family. Bearing in mind the partnership nature of the defendants' business and the commonality between the various offences it is appropriate to adjust the penalty by reducing the amount imposed in relation to each offence. The appropriate penalty in those circumstances in relation to each offence is therefore $7,000. 46 It should be mentioned at this point that for each defendant the submission was made that their plea of guilty to these criminal offences had been made known to their professional associations and had possible consequences for their registration or the conditions under which they practised. It was evident that this submission was aimed at securing a further consideration of the relative seriousness of these offences and their consequences for the defendants outside of the imposition of a penalty by this Court. There was no evidence or submission in general or precises terms as to the extent of this liability and no reference was made to cases of a similar nature which had resulted in the professional practice of a defendant being adversely affected. In light of the recent High Court judgment in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1, where the court emphasised the need for a connection between the subject conduct and the nature of the professional practice exercised, it may well be that there are no adverse consequences for the defendants in their professional life as a result of their plea of guilty in these matters and the imposition of a penalty by the Court. In the circumstances, including the lack of evidence supporting the submission, the submission is one to which little weight can be attached. 47 In relation to the defendants' application for the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 it was accepted that it would be only in rare cases that it would be appropriate to make such an order. Specifically, the defendants accepted the analysis of the law in relation to s 10 and strict liability offences as discussed in WorkCover Authority of New South Wales (Inspector Stewart) v Siemens Dematic Pty Ltd (2003) 121 IR 283 at [55] cf. In that case consideration was given to the discussion by the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60 where the court was dealing with a breach of the Marine Pollution Act 1987, a strict liability offence: the court noted that there was a comparatively minor pollution by a first offender and that it was difficult to identify any effective step that the offender could have taken that did not require virtual perfection and that those considerations should have been given weight by the sentencing Judge. It was further noted that in Hunter Water Board v State Rail Authority NSW (No 2) (1992) 75 LGRA 22 (at 23), Stein J had said that the court had not infrequently stated that it will be a rare case where a dismissal under s 556A is seen as appropriate to an environmental offence, especially a breach of the Clean Waters Act. In a separate judgment the Chief Justice noted that the formulation, "a rare case" or equivalent words, had been applied in the Land and Environment Court on a number of occasions and that similar issues had arisen under s 15 of the Occupational Health and Safety Act. In that context reference was made to the judgment of Fisher CJ in Shultz v Tamworth City Council (1995) 58 IR 221 at 229 to the following effect: The use of s 556A of the Crimes Act, which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed. The Chief Justice continued: [171] Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur ... [178] It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight. 48 Section 10 of the Crimes (Sentencing Procedure) Act provides, amongst other things, that without proceeding to conviction, a court finding a person guilty of an offence may make an order directing that the relevant charge be dismissed. In deciding whether to make an order of this nature the court is to have regard to a number of factors, namely, the person's character, antecedents, the trivial nature of the offence, the extenuating circumstances in which the offence was committed and any other matter that the court things proper to consider. Full Benches of the Court in Department of Mineral Reserves (Chief Inspector McKensey) v Berrima Coal Pty Ltd and anor (2001) 105 IR 348 and WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 have held that where a defendant seeks the exercise of the discretion under s 10 cogent reasons must be provided by the defendant and also by the Judge acceding to the submission. It has been stated that the exercise of such a discretion is saved for extraordinary and highly exceptional circumstances and that it would be inappropriate to exercise the discretion where the risk could have been prevented (WorkCover Authority of New South Wales v Neaves [1996] NSWIRComm 58). These decisions have recognised, however, that it was important to bear in mind that each matter requiring consideration under s 10 of the Crimes (Sentencing Procedure) Act needed to be considered in the light of its own particular circumstances. 49 It is of some interest that recently a five member bench of the Court of Criminal Appeal, dealing with an application under the Crimes (Sentencing Procedure) Act for a guideline judgment concerning the offence of high range prescribed concentration of alcohol under the Road Transport (Safety and Traffic Management) Act 1999 ruled that the guidelines should acknowledge the following (at [146]: (1) an ordinary case of the offence of high range PCA is one where: (i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol; (ii) the offender was detected by a random breath test; (iii) the offender has prior good character; (iv) the offender has nil, or a minor, traffic record; (v) the offender's licence was suspended on detection; (vi) the offender pleaded guilty; (vii) there is little or no risk of re-offending; (vii) the offender would be significantly inconvenienced by loss of licence. Allowing for these elements the guideline judgment nevertheless stated that in an ordinary case of an offence of high range PCA an order under s 10 of the Crimes (Sentencing Procedure) Act would rarely be appropriate. In this particular area of the law the guideline judgment has clearly reduced the significance of what may otherwise be highly relevant factors leading to the exercise of the discretion under s 10 of the Crimes (Sentencing Procedure) Act such as prior good character, little or no record, a guilty plea, little or no risk of re-offending and failure to recognise that they were driving with such a high level of alcohol in their system. 50 In this case the defendants did not attempt to argue that the offences were trivial but emphasis was laid on the previous unblemished record of the defendants, their otherwise strong commitment to safe working practices in the pastoral and grazing industry and the peculiar circumstances that led to the contract shearers being affected even though the CSIRO reports could not attribute those reactions to the level of chemicals found in wool samples submitted by the defendants. While accepting that the offence could not be described as trivial, it was said that the offences where nevertheless at the lower end of culpability and that the nature of the offence was, in any event, only one of the factors to be considered. The extenuating circumstances which were relied upon were the unusual level of fly strike of the sheep held at "Nungi" required the treatment at "Nungi"; the employees of the partnership being long term experienced rural workers; and, the chemicals found in the shed at "Nungi" being, under normal circumstances, retained in the chemical storing shed at "Manton". In relation to other matters that might be taken into account other than those already referred to, emphasis was laid on: the strenuous efforts taken by the defendants to rectify the lack of knowledge and training of themselves and their staff; the strenuous efforts taken by the defendants to inform other farming and pastoral interests in relation to occupational health and safety and safer rural operating; the support the defendants received from the community represented by the character references and the obvious leadership role taken in the community by the defendants; that the defendants had suffered substantial financial detriment as a result of these events and personal anguish; and the defendants' anxiety at having a blemish on their otherwise outstanding character. 51 I accept the submission that a discretion which is incapable of exercise results in there being effectively no discretion available - in another context I have made a comment to similar effect (see Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors [2004] NSWIRComm 194). In both the Court of Criminal Appeal and in Full Benches of this Court it has been accepted, especially in relation to strict liability offences, that where there is a relatively minor offence by a first offender in circumstances where, practically, little could have been done to avoid the offence by the defendant then those circumstances constitute a sufficiently rare case for the application of the discretion available under s 10 of the Crimes (Sentencing Procedure) Act 1999. While it may be accepted that other circumstances may warrant the exercise of the discretion, in my opinion, however, this is not such a case. There were very clear and obvious steps that could have been taken, and have since been taken by the defendants, to address the detriment to safety exposed by their lack of a proper system of dealing with hazardous substances in the course of running their business. In this case I have held that the breach was a serious breach and that the professional qualifications of each of the defendants resulted in them being well placed to carry out the necessary investigation and research in order to establish what was appropriate for the storage and use of hazardous substances. I readily accept the strength of the evidence as to their good character and the efforts made to ensure that otherwise these properties have operated with consideration for necessary safety measures. However, these are matters properly to be taken into account in weighing the subjective elements in assessing an appropriate penalty. I am therefore unable to accede to the defendants' request that they receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. ORDERS Susan Catherine Gordon A. 1. The defendant, Susan Catherine Gordon, is found guilty of the offence under s16(1) of the Occupational Health and Safety Act 1983 to which she pleaded guilty in Matter No IRC 6746 of 2002. 2. The defendant is fined the sum of $7,000 with moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor as agreed or as assessed in accordance with the rules of the Court. B. 1. The defendant, Susan Catherine Gordon, is found guilty of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which she pleaded guilty in Matter No IRC 6756 of 2002. 2. The defendant is fined the sum of $7,000 with moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor in a sum as agreed or as assessed in accordance with the Rules of the Court. Richard Edward Killen Gordon A. 1. The defendant, Richard Edward Killen Gordon, is found guilty of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which he pleaded guilty in Matter No IRC 6747 of 2002. 2. The defendant is fined the sum of $7,000 with moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or assessed in accordance with the Rules of the Court. B. 1. The defendant, Richard Edward Killen Gordon, is found guilty of the offence under s 16(1) of the Occupational Health and Safety Act 1983 to which he pleaded guilty in Matter No IRC 6748 of 2002. 2. The defendant is fined the sum of $7,000 with moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor as agreed or assessed in accordance with the Rules of the Court. C. 1. The defendant, Richard Edward Killen Gordon, is found guilty of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which he pleaded guilty in Matter No IRC 6753 of 2002. 2. The defendant is fined the sum of $7,000 with moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor as agreed or assessed in accordance with the Rules of Court. 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.