Industrial Relations Commission of New South Wales in Court Session CITATION : Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 PARTIES : Department of Mineral Resources of NSW (Chief Inspector Graham Terrey) A M Hoipo & Sons Pty Ltd FILE NUMBER: IRC6258 of 1998 CORAM: Walton J Vice-President CATCHWORDS : Occupation Health and Safety - Breach of s15(1) of Occupational Health and Safety Act 1983 - Death of employee when trapped in unguarded conveyor - Plea of guilty - Penalty - Uncertainty surrounding circumstances of employee's death - Resolution of factual issues in sentencing - Standard of proof to be applied - Nature and quality of offence - Objective seriousness of offence involving investigation of whole content of the offence - Risk posed by unguarded conveyor foreseeable notwithstanding uncertainty concerning what employee was doing prior to accident - Offence aggravated by failure of employer to comply with earlier notice to guard machinery - Straightforward remedial steps and foreseeability - Proof of a cause of a particular accident not necessary - Foreseeability of the detriment to safety relevant and not foreseeability of the precise circumstances of an accident - Effect of size of business on penalty - Factors to be taken into account in mitigation. LEGISLATION CITED : Occupational Health and Safety Act 1983 Mines Inspection Act 1901 Department of Mineral Resources of NSW (Chief Inspector Bruce McKensey) v Kembla Coal and Coke Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC142 of 1998, 16 August 1999) Warman International v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of NSW v Waugh (1995) 59 IR 89 R v Olbrich (1999) 166 ALR 330 R v Storey [1998] 1 VR 359 Inspector Gordon v MIJO (NSW) Pty Limited (unreported, Cullen J, CT1002 of 1993, 2 December 1993) WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Co Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC1072 of 1998, 4 February 2000) CASES CITED : Ferguson v Nelmac Pty Limited (unreported, Wright J, President, Matter No. IRC3418-3423 of 1997, 24 May 1999) R v Sgroi (1989) 40 A Crim R 197 WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd and another (unreported, Walton J, Vice-President, Matter No. IRC 1104 of 1998, 4 February 2000) Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 WorkCover Authority of NSW v C I & D Manufacturing Pty Limited (unreported, Fisher CJ, Matter No. CT1192 of 1994, 14 December 1995) Campbell v Neaves (unreported, Hungerford J, Matter No. CT1150 of 1995, 29 March 1996) WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) Neal (1982) 56 ALJR 848 HEARING DATES: 09/09/1999; 09/23/1999; 11/10/1999 DATE OF JUDGMENT: 03/15/2000 PROSECUTOR Ms W Thompson (of counsel) SOLICITORS F Krstic LEGAL REPRESENTATIVES: Department of Mineral Resources of NSW DEFENDANT Mr B Hodgkinson (of counsel) SOLICITORS Tesoriero Henderson Cotter JUDGMENT: - 39 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President WEDNESDAY 15 MARCH 2000 MATTER NO. IRC 6258 OF 1998 DEPARTMENT OF MINERAL RESOURCES OF NEW SOUTH WALES (CHIEF INSPECTOR GRAHAM TERREY) v A M HOIPO & SONS PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 This matter is a prosecution by Graham Terrey, as Chief Inspector of Mines of the Department of Mineral Resources of New South Wales ("the Department"), of A M Hoipo & Sons Pty Ltd ("the defendant") for a breach of s15(1) of the Occupational Health and Safety Act 1983 ("the Act"). 2 Section 15 of the Act provides: 15. Employers to ensure health, safety and welfare of their employees. (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails - (a) to provide or maintain plant and systems of work that are safe and without risks to health; (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances; (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees; (d) as regards any place of work under the employer's control - (i) to maintain it in a condition that is safe and without risks to health; or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks; (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work; or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information - (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health; or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. 3 The prosecution arose from the tragic death of Mr Colin Edward Banville on 4 August 1997. Mr Banville had been employed since January 1997 as a plant operator at a small sand quarry which was run by the defendant. At that time the quarry was operated directly by the defendant together with a chicken and cattle business on its property at Somersby, New South Wales. Mr Allan Hoipo, the principal of the defendant, was the nominated manager of the quarry under the Mines Inspection Act 1901 and the holder of the Mine Managers Certificate issued by the Department. 4 On 4 August 1997 Mr Hoipo was absent from work due to illness. However, Mr Hoipo did attend the quarry at about 11.00 am on that day for the purpose of retrieving certain accounts of the business. He spoke briefly to Mr Banville who informed him that there would be no problems with running the quarry that day on his own apart from a problem with the skirting rubber within or under the bin located on conveyor No. 3. Mr Banville apparently indicated that he could fix the problem. 5 Mr Banville was last seen alive at approximately 12.40 pm on 4 August 1997, when a truck driver, Mr Allan Loines, arrived at the quarry to load his truck with sand. Mr Banville was at that time on his lunch break and Mr Loines indicated he would wait in his truck until Mr Banville was ready. At about 1.25 pm, a worker employed in the chicken business, Mr Telfer King, was refuelling an excavator at the site. Mr Tefler was driving the excavator back up the hill when he noticed that Mr Banville was lying on the end of the conveyor belt. 6 Mr King stopped the conveyor belt and called out to Mr Loines and another driver, Mr Wood, that there had been an accident. Messrs Loines and Wood joined Mr King and both observed that Mr Banville had blood coming from his throat and agreed that he was deceased. Mr Wood then used the mobile phone in his truck to ring the triple 000 number and notify the telephone operator what had happened. Mr Hoipo was then informed and the Regional Inspector of Mines of the Department, Keith Chilman, attended the scene of the accident that afternoon and conducted an investigation. 7 The summons filed by the Department on 27 November 1998 charges that the defendant, being an employer, did fail to ensure the health, safety and welfare at work of all its employees in that it did fail to provide and maintain plant, namely, a conveyor system that was safe and without risk to health. The particulars of the charge were stated as follows: a. At all material times the defendant conducted a sand mining business (the quarry) from a property located in Hoipo Road, Somersby. b. At all material times the defendant employed Colin Edward Banville. c. Located at the quarry was a conveyor which was used for moving sand to a mixing tank. d. The conveyor system was inherently dangerous and constituted a risk to health and safety to persons who came into contact with it, in that: I. the nip points on the conveyor were not guarded; II. the drive belts and pulleys were not guarded; III. the impact points under the bin were not guarded; IV. there was no emergency stop button or lanyard on the conveyor; V. there was no acceptable access to the head pulley platform; VI. there was no acceptable access to observe the contents of the mixing tank; VII. the conveyor was located close to a sheer drop to the roadway; VIII. the ladder to the top of the bin was not secured. e. On the 4 August 1997 Colin Edward Banville died from traumatic asphyxia due to a crush injury to his chest after his arm was pulled under the axle of the head drum of the conveyor. 8 A statement of agreed facts was admitted into evidence by consent in the following terms: 1. At all relevant times, Graham Terrey, Chief Inspector of the Department of Mineral Resources of New South Wales at 29-57 Christie Street, St Leonards in the State of New South Wales was duly appointed under s32 of the Mines Inspection Act 1901 and empowered under s48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter. 2. At all relevant times, A.M. Hoipo & Son Pty Limited (ACN 002 599 288) (hereafter "the Defendant") was an incorporated company whose registered address is c/- Grant Thornton, Level 1, 80 George Street Parramatta in the State of New South Wales. 3. At all relevant times, the Defendant operated the Hoipo Quarry at Hoipo Road, Somersby, New South Wales. 4. At all relevant times, the Defendant was the employer of Colin Edward Banville. 5. On 4 August 1997 at Hoipo Quarry, Hoipo Road, Somersby, New South Wales, Colin Edward Banville died from traumatic asphyxia due to a crush injury to his chest after his arm was pulled under the axle of the head drum of an unguarded conveyor. 6. At all relevant times, the Defendant conducted a sandmining business, a quarry from a property located in Hoipo Road, Somersby. The quarry was operated at the relevant time by the Defendant as a family business. Allan Matti Hoipo, a director of the Defendant company had taken over the operation of the quarry in 1977 when his father died. The quarry had been operated as a ridge gravel quarry and in 1982 it commenced operation as a sand quarry. 7. The Defendant employed the deceased worker in January 1997 as a plant operator. Part of the duties of the plant operator was to operate the loader and excavator at the quarry. 8. On or about 7pm on Sunday, 3 August 1997, Mr Hoipo rang Colin Banville and told him that he would not be attending the quarry the next day, as he was ill with the flu. According to Mr Hoipo, Mr Banville agreed to attend to the daily duties required at the quarry. 9. At about 11am on Monday, 4 August 1997, Mr Hoipo together with Heather Bock, an employee of the Defendant, attended the quarry to retrieve accounts for the business. At the time he attended the quarry, Mr Hoipo spoke to Mr Banville, who informed him that there were no problems with the running of the quarry that particular day apart from a problem with the skirting rubber within or under the bin located on conveyor no.3. The Defendant was aware of a previous problems occurring with the skirting rubber on the said conveyor when the bin was empty of sand. According to Mr Hoipo, at the time Colin made the complaint about the skirting rubber the bin was empty. There was a short discussion between Mr Hoipo and the deceased worker about fixing the problem and Mr Banville indicated that he could fix it. According to the defendant the fixing of the skirting rubber would not require the deceased worker to be in the area where the accident occurred. Mr Hoipo and Heather Bock, after collecting the accounts, left the quarry and returned to Mr Hoipo's home. Mr Banville was last observed to be alive at about 12:40pm when Allan Loines, a truck driver, arrived at the quarry to pick up a load of sand. At the time Mr Banville was on his lunch break and Mr Loines indicated he would wait until he finished his lunch break before commencing loading. Mr Loines had a rest in the cabin of his truck in the loading area of the quarry for about 45 minutes when he was awoken by the sound of the water pump which is located at the lower end of the quarry near the loading area. He remained in his truck for a period of a further 10 minutes waiting for Mr Banville to come down in the loader to load the truck. At about the time he was going to check to find out what was taking Mr Banville so long to load, he was informed by another employee, Telfer King, that Mr Banville had had an accident and that he appeared to be dead. Mr Loines then got out of his truck and ran to the area where he knew the deceased worker would be located. As he neared the wash plant area, he saw Mr Banville lying over the top of the conveyor belt. He saw as he got closer that Mr Banville was caught in the conveyor belt and that his throat had been cut. There were no witnesses to the accident. 10. The accident was notified to the Department of Mineral Resources of New South Wales at 2:25pm on the said day. Inspector Keith Chilman attended the scene of the accident prior to the removal of Mr Banville's body and carried out an investigation. Inspector Chilman inspected the scene of the accident again on 5 August 1997, together with Mechanical Inspector of Mines, Mr Robert Johnson, and Mr Hoipo. Mr Hoipo was the nominated manager of the quarry under the Mines Inspection Act 1901 and the holder of a Mine Managers Permit issued by the Department of Mineral Resources. From the investigations carried out the following emerged: (i) Inspector Chilman observed a deceased male person known as Mr Banville lying over the head drum of a stationary conveyor belt with his right arm being pulled down between the head drum and the frame supporting the conveyor and under the axle of the head drum. The deceased was lying on his side on top of a handrail which appeared to have broken away from one of its supporting welds and his back was against the side of the conveyor belt. The deceased worker's legs were resting on top of the rubber pulley belts of the conveyor electric drive motor. A large cut was visible on the deceased worker's throat which was situated on top of a piece of protruding steel angle that formed part of the conveyor frame. There were no visible injuries to the deceased's right arm, which indicated to Inspector Chilman that the arm had not been pulled underneath the conveyor belt on the head drum. The conveyor on which the deceased worker was found was conveyor no.3. (ii) The sand quarry is a small family operation usually operated by one person. The sand is extracted at the quarry by earth-moving equipment and screened at the bottom level of the quarry, where it is stock-piled and loaded directly into trucks for sale. Some of the sand however is washed and is taken and by loader up to a bin and conveyor system, where it is transferred to a mixing box, mixed with water and transferred to a higher level in the quarry. The conveyor system where the sand is washed is known as conveyor system no. 3. It was at this system that Mr Banville was working at the time of the accident. A sketch plan depicting the layout of the quarry, a diagram of the no.3 conveyor system, and photographs depicting the configuration of the sand hopper, bin, conveyor head drum, mixing box, access platform and electrical switch box which made up conveyor no.3, are contained in Inspector Chilman's report. (iii) The process at conveyor no.3 was for screened sand to be put into the bin using a loader. The sand was then transported by conveyor to a tank, to which water was added. The added water caused a swirling action that mixed the sand and water. The screen was placed at the bottom of the tank to remove unwanted material from the sand. The sand was then pumped to a cyclone where it was sized or stacked for drying. The conveyor and pump were driven by electric motors. (iv) The nip points on the conveyor were not guarded. (v) The drive belts and pulleys were not guarded. (vi) The impact points under the bin were not guarded. (vii) There was no emergency stop button or lanyard trip wire fitted to the conveyor particularly at the head drum to enable a person to stop the conveyor in an emergency. The controls to stop and start the conveyor were located on an electrical switch box situated at ground level in front of the conveyor some two metres distant. The two wires at either end of the handrail indicated that there may have been an emergency lanyard trip wire at some stage of the life of the conveyor. (viii) While there was no proper walkway access to the platform where Mr Banville was found at the time of the accident, access could be obtained to the platform by stepping onto the timber pallets placed underneath the conveyor. According to Mr Hoipo, the pallets had been stored in that position since 1995. (ix) There was no access to the mixing box and in order to view inside the mixing box it would be necessary to lean over the area where the deceased worker was located and the head drum of the conveyor. (x) The bin was empty apart from a small amount of sand in one corner. (xi) The ladder to the top of the bin was not secured. (xii) An adjustable gate was at the front of the bin. A handle made of pipe was used to adjust the gate. The gate was in a fixed position at all times prior to the accident. There was no safe access to the gate handle and as such it was necessary to stand on the conveyor belt to operate it. (xiii) The fan cover on the conveyor drive motor was broken. (xiv) The no.3 conveyor was located close to a steep edge which led to the roadway below. (xv) On the said day, Mr Hoipo was asked by Inspector Chilman to operate the machine after the body of Mr Banville was removed. The machine was started and appeared to operate with no problems. 11. Part 10 of the general rule of the Mines Inspection Act 1901 states as follows: 's45 The manager of a mine must ensure that all equipment and machinery at the mine is designed, used, maintained, repaired, and replaced so as to protect the health and safety of the persons at the mine. s46 The manager of a mine must ensure that: (a) all equipment and machinery at the mine is kept in a fit state and conditions for work; and (b) all equipment and machinery at the mine is appropriately guarded and protected to preclude the opportunity for persons to become entangled, struck or otherwise harmed by it's movement or operation; and (c) adequate access facilities are provided to all parts of equipment or machinery that persons may be required to operate, lubricate, maintain or inspect.' 12. The Australian Standard 1755 Conveyers - Design, Construction, Installation and Operation - Safety Requirements sets out the requirements for guarding of conveyers. Australian Standard 1657 Fixed Platform, Walkways, Stairways, and Ladders - Designed, Construction and Installation covers the construction of ladders, walkways and platforms. According to Inspector Johnson, the said conveyor did not comply with AS1755 in that the nip points (head and tail pulleys and impact points) on the conveyor were not guarded. 13. There was no access to the head pulley platform and the guardrails around the platform did not comply with AS1675. According to AS1675, the definition of a guardrail is a structure to prevent persons falling off any platform walkway or landing. A handrail is a rail to provide handhold on a platform, walkway, stairway, or step ladder. It may form part of a guard rail. The AS1657 states: 'Each handrail which is not part of a guardrail shall be designed to withstand the following non-simultaneous forces: (a) A force of 550N applied outwards at the centre of the span. (b) A force of 550N applied downwards at the centre of the span.' The said handrail was observed to be made from 65mm x 5mm flat bar welded to the edge of an angle post measuring 50mm x 6mm on the right-hand side and a 42.4mm pipe with a wall thickness of 3.2mm. The handrail in the opinion of Inspector Johnson would not support a force of 550kN as required in the standard AS1657. 14. Subsequent inspection of the welds on the platform, handrail and guardrail revealed that all of the welds appeared to be intact and not repaired since the conveyor was first built, apart from the welds that appear to have failed during the accident. At the part where the handrail came away, Inspector Johnson observed a brown mark and rust, indicating that the original weld had failed and at some time the rail had been re-welded. A photograph was taken of the weld area by Inspector Johnson and is contained in Inspector Johnson's report. Inspector Johnson calculated that the weld on the handrail would support a maximum mass of approximately 15 kilos grams (sic) before it failed. The right-hand side post to which the rail was attached was found to be bent towards the electric motor, indicating that at some point a significant force had been applied. It is not known whether this section was bent prior to the accident. Inspector Johnson observed that there was some flaking of the paint near the bend and that the actual length of the rail was longer than the distance where it would have been located. 15. Sometime earlier on 29 March 1995, Inspector Johnson had inspected the quarry. He did not speak to Mr Hoipo as he was not on site but spoke instead to the plant operator, Mathew Bailey. As a result of the inspection, a letter was sent to the Defendant dated 7 April 1995 indicating that the nip points on the conveyors should be guarded to prevent injury to personnel and the tail drums should be guarded on the two stacker conveyors. During the time of the site inspection in 1995, Inspector Johnson photographed various areas of the site including Conveyor no.3. That photograph is contained in Inspector Johnson's report. Shortly after the said inspection, Inspector Johnson was contacted by Mr Hoipo, who telephoned him about the directions given. The directions required the fitting of roll-over protective structures and seat belts to be fitted on mobile earth-moving equipment; persons operating the machinery to wear seat belts; and the guarding of nip points on the conveyors and the tail drums on the two stacker conveyors. The conveyors (except Conveyor no.3) and the screening plant were subsequently guarded according to Mr Hoipo. 16. On 16 October 1997, Inspector Chilman again visited the said quarry. He had attended the site to obtain several overview photographs to put in his report. Whilst at the site he noticed sitting on top of the conveyor two old guards. He examined the said guards and placed them over the pulley belt of the head drum and found that they fitted. Inspector Chilman concluded that the guards had been previously fitted to the conveyor at some earlier point in time. 17. After the fatality, the Defendant entered into an agreement with Eastern Sand and Gravel Co Pty Limited, who now operate the quarry although it continues to be owned by Mr Hoipo. The new operators of the mine have moved the conveyor away from the road cutting, where it had previously been placed. The consequence of the previous location of conveyor no.3 was that any maintenance to be performed on the bin would have been made whilst the person doing the maintenance was leaning out across the road at some height. In addition a number of guards and handrails and lanyards have been fitted to conveyor no.3. 9 In addition to the statement of agreed facts, various other evidence was adduced in the proceedings. The prosecutor tendered without objection by the defendant a "Fatal Accident Report" dated November 1997 concerning the incident completed by Inspector Keith Chilman, Regional Inspector of Mines. The report of Inspector Chilman contained a number of components, including a report by himself with conclusions as to the circumstances and likely causes of the accident, as well as a series of photographs taken immediately after the accident and sketches of the layout of the quarry and of the conveyor in question. Inspector Chilman stated his conclusions as follows: Mr Banville was found by Mr Telfer King caught up on the head drum of the conveyor belt at some time after 1.15 pm. Mr Banville was bleeding from a cut on his throat, his right arm was caught up over and under the axle of the head drum of the conveyor, with the conveyor and pulley belts turning against his body and legs. Mr King stopped the conveyor at the blue electrical switch box which is located at ground level some 2 metres from where Mr Banville was caught. He then called out to the two truck drivers Messrs Loines and Wood who were waiting in their trucks for Mr Banville to load them. Both these persons came immediately to the scene and agreed with Mr King that Mr Banville was deceased. As there were no witnesses to the accident, the following analysis is made of the facts available, in order to ascertain the cause: · Mr Banville had told his employer Mr Hoipo when he visited the quarry at 11 am that he was having trouble with the adjustment of the skirting rubber under the hopper bin, which controls the sand fed onto the conveyor belt. Mr Hoipo states that Mr Banville had told him he only had the problem with the skirting when the hopper was empty and not when it was full. Mr Hoipo also stated that Mr Banville had no reason to be on the platform opposite the head drum, and the problem with the skirting rubber was not related. Regardless of Mr Hoipo's evidence that Mr Banville had no reason to go onto the head drum platform, it is reasonable to assume that if Mr Banville did have a problem with the operation of the conveyor system, it would have been reasonable for him to observe and inspect the operation of the conveyor, even to climb up onto the platform and observe the amount of discharge. · Because of the position Mr Banville was found, it is reasonable to assume he was leaning over the conveyor head drum to observe the feed being discharged into the mixing box. To do this Mr Banville would have needed to lean forward with his weight against the hand rail above the drive motor so as his legs were back away from the moving pulley belts of the motor. In this position Mr Banville would have been pushing down on the end of the handrail that broke. There are a number of arguments that support this hypothesis and they are: 1. Mr Banville's position of his legs and body indicated that he had previously been standing on the platform. 2. It is possible to look into the mixing box by leaning over the conveyor head drum. This was carried out during the inspection of the accident scene. 3. To look over the head drum, it would have been necessary for Mr Banville's legs to be standing back away from the moving pulley belts of the drive motor so they wouldn't come in contact and for Mr Banville to have his weight resting on the handrail. 4. The weight of Mr Banville on the handrail may have broken the weld particularly if the weld was faulty or was already damaged. 5. Should Mr Banville's legs have come in contact with the pulley belts at any stage, the contact would have had the effect of causing him to jump forward. 6. When falling forward Mr Banville's throat came down on a piece of protruding steel angle which was part of the conveyor frame, cutting his throat. Mr Banville may have bleed (sic) to death, with most of the blood flowing down the mixing box being washed away with the water and sand. 7. When falling forward Mr Banville would have had his right arm extended forward to stop his fall. This arm was pulled in between the moving drum of the conveyor and the frame under the conveyor axle. The injuries to his arm do not suggest that the arm was pulled under the conveyor belt. 8. Mr Banville was found with his back against the moving conveyor and would have suffered major abrasions to his back. 9. There was no guarding over the conveyor drum which would have prevented Mr Banville making contact with the conveyor. 10. There was no guarding over the pulleys of the drive motor and Mr Banville was found with his legs against the moving belt. 11. There was no emergency lanyard tripwire to stop the conveyor and when Mr Banville was found by Mr Telfer King, Mr King had to stop the conveyor at the electrical switch box situated at ground level some 2 metres from the conveyor. 12. The two eyes at either end of the handrail indicate that there may have been an emergency lanyard trip wire at some stage on this conveyor. 10 The appendices to the report contained a statement made by Inspector Chilman on the day of the accident, various statements taken by Gosford Police, an autopsy report completed by Dr Godfrey Oettle for the Coroner and an accident report completed by Inspector Johnson for the Department on 8 December 1997. 11 The evidence led by the prosecutor also included a letter from the Department addressed to Mr Hoipo dated 7 April 1995 (two years prior to the accident) and a photo depicting the guarding placed over the conveyor belt. The letter required two modifications to be made to the plant and equipment used at the site, including that the nip points on conveyors should be guarded to prevent injury to personnel. The photo depicted the guarding which has been subsequently placed over the conveyor belt. Correspondence from the defendant's solicitor containing the 1998 Income Tax Return of the defendant was also put into evidence by the prosecutor. 12 The evidence for the defendant included a further series of nine photographs taken during 1995 which show the general positioning of the machinery at the quarry and an extensive statement by Mr Hoipo detailing his recollections of the events surrounding the accident as well as general background concerning the quarry and Mr Hoipo's personal circumstances. A report prepared by Mr Rob Widders of WBM Consulting Engineers Pty Ltd, which presented the results of an assessment of the hand rail of the conveyor system, was also put in evidence by the defendant. Additionally, two personal references for Mr Hoipo were tendered, namely a reference from Mr Warwick David Patton, an acquaintance and business associate, and Mr Andrew John Hirons, a neighbour to the property at Somersby. Amongst other things, both Mr Patton and Mr Hirons made statements concerning Mr Hoipo's conduct as an employer and the affect of the accident on him personally. Proceedings in relation to penalty 13 It was indicated from an early stage that the defendant would plead guilty to the charge in this matter. When the matter came on for hearing, Mr Hodgkinson, counsel for the defendant, formally entered a plea of guilty on behalf of the defendant. Having regard to the summons in this matter, the particulars of the offence, the statement of agreed facts and the evidence, I am satisfied that the offence has been proven and that the plea of guilty has properly been made by the defendant. A verdict to that effect is entered. 14 There remains the consideration of the appropriate penalty for the defendant. As I indicated in Department of Mineral Resources of NSW (Chief Inspector Bruce McKensey) v Kembla Coal and Coke Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC142 of 1998, 16 August 1999), notwithstanding the plea of guilty, the Court is required to investigate the whole context of the offence in order to determine the objective seriousness of the offence as well as to identify any issues in mitigation or aggravation which should be considered in sentencing. Evidence in Dispute 15 It is necessary to commence by recording that there were a number of disagreements between the parties concerning the facts of the case. Ms Thompson, counsel for the prosecutor, indicated that there were two broad areas of dispute. Firstly, there was a disagreement on the conclusions which could reasonably be drawn from the evidence as to why Mr Banville was on the platform at the time the accident occurred. Secondly, there was a disagreement as to how Mr Banville became caught on the conveyor system, particularly concerning the way in which the hand rail on the platform contributed to the accident. 16 As to the first issue, the prosecutor conceded that the reason for Mr Banville's presence on the platform may be relevant to the foreseeability of the risk that existed and, hence, the degree of culpability of the defendant. It was accepted that the risk of an employee being caught in unguarded machinery in an area where no one was expected to be could have a lower level of culpability than the risk of an employee becoming so caught in an area which is commonly frequented by employees. However, the prosecutor submitted that it was entirely consistent with the work duties of Mr Banville and the operation of the quarry for the deceased to be at the platform. 17 Ms Thompson highlighted that it was not unusual for Mr Banville to operate the quarry on his own and was in control of all aspects of the quarry's operations on the day of the accident. The defendant conceded that Mr Banville had operated the conveyor on previous occasions and there was nothing to suggest that this was not the case on the day of the accident. Further, Mr Banville regularly performed various maintenance tasks as well as operational tasks. 18 At 11.00 am on the day of the accident, Mr Banville had a discussion about a problem with the rubber skirting on the hopper of conveyor No. 3 with Mr Hoipo and suggested that he would fix it. The purpose of the rubber skirting was to ensure an even and appropriate flow of sand onto the conveyor. There was no opposition to this proposal by Mr Hoipo. Ms Thompson contended that the evidence was consistent with Mr Banville having used conveyor No. 3 that day. Both the water pump and conveyor were operating at the time of the accident. Ms Thompson pointed to some of the photographs contained in Inspector Chilman's report which show the presence of sand on the structure of the conveyor indicating that it had recently been used. In light of these circumstances, it is reasonable to conclude that after fixing the rubber skirting problem Mr Banville accessed the platform area to satisfy himself that there was no problem with either the conveyor or the discharge of sand into the mixing box. This scenario was supported by the reports of Inspector Chilman and Inspector Johnson. 19 The defendant, on the other hand, submitted that there was no explicable reason why Mr Banville would have been on the platform at the time of the accident. Mr Hodgkinson pointed to the fact that according to Mr Hoipo conveyor No. 3 was not in use on the day of the accident and that if the conveyor was in use at the time of the accident you would expect to see sand on the clothing of the deceased. No sand was found on the deceased and no sand was found in the hopper or in the loader. Mr Hodgkinson refuted the conclusions drawn by the prosecutor from the presence of sand in the photos contained in Inspector Chilman's report. There would, it was contended, have been no occasion for Mr Banville to be at the platform in the course of his work and no reason to observe the operation of the conveyor. 20 Mr Hodgkinson also highlighted that as there were no tools located nearby, it cannot be said that any maintenance or repair work was being carried out and argued that Mr Banville's job did not extend to doing maintenance work that involved mechanical repairs. The platform was only accessed for the purpose of conducting mechanical repairs. The defendant also noted that because the conveyor was subsequently operated without any problem it is unlikely that any fault with the conveyor led Mr Banville to be at the platform. 21 Turning to the final position of Mr Banville, the prosecutor submitted that the reports of both Inspector Chilman and Inspector Johnson concluded that the hand rail on the platform gave way while Mr Banville was leaning across the railing causing his right hand to enter the area between the conveyor's moving head drum and frame. He was thereby pulled in under its axle by the movement of the drum. Inspector Chilman's report states that: Because of the position Mr Banville was found, it is reasonable to assume he was leaning over the conveyor head drum to observe the feed being discharged into the mixing box. To do this Mr Banville would have needed to lean forward with his weight against the hand rail above the drive motor so as his legs were back away from the moving pulley belts of the motor. In this position Mr Banville would have been pushing down on the end of the handrail that broke. 22 The prosecutor also noted that the autopsy report identified that the injuries sustained by Mr Banville were consistent with the deceased having been drawn into the conveyor, but did not speculate on how this occurred. 23 Ms Thompson also submitted that the issue of the failure of the handrail was of limited importance. It was contended that the risk of a person becoming trapped in the unguarded moving parts of the conveyor or in the pulley belt of the driver motor was present and foreseeable with or without the failure of the handrail. Further, the prosecutor submitted that the report of WBM Engineers concerning the handrail should be given little weight. Firstly, it was not clear whether the rail was bent prior to the accident. If it was, then the report is of no relevance at all. Secondly, Ms Thompson contended that the computer analysis contained in the report was based on a series of assumptions and the actual failure load could only be determined through a practical load test. 24 The defendant rejected the conclusion that Mr Banville had become trapped when he fell through the handrail. Relying upon the WBM report, it was submitted that the force required to deform the handrail was of such significance that it could not have happened as a consequence of the deceased worker falling upon the rail as there was simply not sufficient force available from a person of the height and weight of the deceased. Mr Hodgkinson refuted the suggestion that the handrail could have been bent prior to the accident. There was no evidence to suggest that it was, nor any rational basis to determine that it was. He submitted it was merely a possibility and it was not open to the Court to determine, even on the balance of probabilities, a factual matter relevant to sentencing on the basis of a scenario which was merely possible. 25 The defendant postulated that Mr Banville had the bulk of his body behind the handrail at the time of the accident with his right arm extended over the handrail and his right hand on or near the conveyor drum. Mr Hodgkinson hypothesised that Mr Banville must have been crouched behind the rail when he became caught in the nip point of the conveyor and was then dragged against and eventually through the rail. This is the only hypothesis, it was submitted, that was consistent with the deformation in the rail and with the medical evidence. In particular, Mr Hodgkinson pointed out that the autopsy report recorded significant crush injuries to the chest which were consistent with the deceased having been pulled against the rail. Submissions as to penalty 26 The prosecutor submitted that the failures of the defendant in this case placed the nature and quality of the offence in the worst category and merits the imposition of a major penalty. The most significant risk associated with the conveyor was the unguarded nip point located at the head drum. This was the point at which Mr Banville became trapped. However, other substantial risks also existed in the conveyor. Notably, once trapped, Mr Banville was some two metres from the stop switch and there was no other means of stopping the conveyor. The unguarded pulley drive belt of the drive motor also posed a serious risk to safety when a person was seeking to gain access to the platform. 27 It was submitted that the failure of the defendant to guard the nip point at the head drum or the drive belt and pulleys left an employee standing on the platform exposed to clear and obvious risk of entrapment: see Warman International v WorkCover Authority of NSW (1998) 80 IR 326 at 343. The risk of death or serious injury by becoming trapped in the moving parts of a machine could not be more clear or obvious. Citing the judgment in Department of Mineral Resources v Kembla Coal and Coke Pty Limited, Ms Thompson submitted that the foreseeability of an accident is a significant factor to be taken into account when assessing the culpability of a defendant and that the foreseeability of risk in this case was high. 28 It was submitted that the defendant not only offered no explanation as to why no action was taken to guard the conveyor, but also produced no evidence to show that any system of work was in place to ensure the safety of persons required to operate conveyor No. 3. There was no evidence of any directions, documentation or signage on the platform warning of the danger or indication that a worker should not seek to access the platform. The prosecutor contended that the accident of 4 August 1997 occurred during the normal operation of the quarry. Mr Banville was left to operate the quarry on that day in the manner that he saw fit and there was no suggestion that there were any restrictions upon the duties he was instructed to perform. 29 Ms Thompson highlighted that the defendant had received a notice from the Department some two years prior to the accident requiring the modification of the conveyor system. Whilst some work had been done on the conveyor, no explanation was given as to why no guarding was provided on conveyor No. 3. Referring to the decision of the Full Court in WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 100, Ms Thompson submitted that failing to remedy a risk after receiving a notice was a significant aggravating factor in that a perceived danger was left in place and unchecked. 30 Ms Thompson further contended that simple and straightforward remedial steps could have been taken by the defendant which would have prevented the accident. In particular, an appropriate guard could easily have been placed on the machinery. The low cost and comparative ease with which the risk to health and safety could have been removed by the defendant was said to be evidence of the serious nature of the offence. 31 The defendant submitted that the platform at the top of the conveyor on which Mr Banville must have been standing immediately prior to becoming trapped was not an expected place of work for him. It was accepted that the platform may be used in the course of conducting maintenance work, but operations personnel, such as Mr Banville, would have no occasion to be working on the platform. Accordingly, Mr Hodgkinson contended that the foreseeability of the risk was greatly reduced. Further, Mr Hodgkinson argued that it was not open for the Court to ascribe a high level of foreseeability to the offence in circumstances in which it could not be determined with any precision what Mr Banville was doing prior to his death. He submitted this was a case in which the unguarded machinery was located at a physically isolated part of the plant where an employee would not ordinarily have occasion, or be expected, to be present and in these circumstances, there was a much lesser degree of culpability than would be the case if the employee would customarily be in the proximity of the dangerous machinery. 32 Mr Hodgkinson submitted that in determining the penalty to be imposed, consideration should be given to the small nature of the enterprise carried out by Mr Hoipo, albeit through a corporate mechanism. The defendant did not argue impecuniosity, but did suggest that it was proper to have regard to the nature and extent of the defendant's operation when considering penalty. In addition, it was pointed out that, in effect, Mr Hoipo would be forced to pay any fine imposed. 33 Finally, Mr Hodgkinson submitted that various factors should be considered in mitigation of penalty in this case. In particular, Mr Hodgkinson pointed to the personal impact which the tragic circumstances of this case have had on Mr Hoipo, the plea of guilty and the willing co-operation given by Mr Hoipo to the investigation of the accident by the Department. 34 Pursuant to leave given on the final day of hearing, supplementary submissions were filed by Ms Thompson for the prosecutor. In response to Mr Hodgkinson's submissions, Ms Thompson submitted that irrespective of what Mr Banville was doing at the particular place at the time of his death, the risk posed by unguarded nip points on a conveyor to entangle a worker was easily foreseeable and reiterated that the defendant had been put on notice of the hazard by the Department more than two years before the accident. 35 Ms Thompson also refuted the suggestion that the platform could be a place of work for maintenance workers, but not for operational employees of the quarry such as Mr Banville. It was submitted that the scale of the defendant's operations did not permit such a division in the type of labour which was implied to have existed. Mr Banville commonly operated the quarry on his own, as occurred on the day of the accident, and it was conceded that he performed some maintenance tasks. Factual Findings 36 As has been recorded, there were a number of disputes arising out of the evidence. The approach to be adopted in seeking to resolve factual disputes in sentencing proceedings is dictated by the decision of the High Court in R v Olbrich (1999) 166 ALR 330 at 336. There Gleeson CJ, Gaudron, Hayne and Callinan JJ rejected the contention that: … a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. 37 As to the standard of proof that should be applied, their Honours (at 336) endorsed what was said by the majority in R v Storey [1998] 1 VR 359 at 369, that a sentencing judge: … may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. 38 In this case, there were two matters alleged by the prosecutor which were said to increase the culpability of the defendant. The first of those matters concerned the reason why Mr Banville may have been present on the platform at the time of the accident. For instance, the prosecutor hypothesised that, after fixing the rubber skirting on the mixing box, Mr Banville accessed the platform for the purpose of satisfying himself that there was no problem with the conveyor or discharge of sand. That proposition was supported by the report of Inspector Chilman and Inspector Johnson. The defendant, to the contrary, contended that there was no explicable reason for Mr Banville's presence on the platform. 39 I am not satisfied that the scenarios proposed by the prosecutor have been made out to the standard dictated by the High Court in Olbrich. It was accepted that Mr Banville spoke to Mr Hoipo on the morning of the accident concerning a problem which had been encountered with the rubber skirting of the hopper bins. It is possible that Mr Banville fixed the rubber skirting and then ascended the platform to observe the operation of the conveyor. However, this suggestion is little more than speculation and evidence was raised by the defendant which may be inconsistent with that hypothesis. 40 The evidence which is said to support the conclusion that conveyor No. 3 was being employed to wash sand at the time of the accident is at best equivocal. The photos indicate that there was some damp sand present around the top of the conveyor which was said to support the conclusion that the conveyor had been used recently. However, no evidence was presented to indicate whether this proved the conveyor was in use that day. Further, there is some force in the suggestion raised by the defendant that the absence of tools indicated that the deceased had not been occupied repairing the rubber skirting and the submission that it is unlikely that Mr Banville would have commenced repairing the skirting at the time when, to his knowledge, a truck was waiting to be loaded. 41 The failure of the prosecutor to establish a particular reason for Mr Banville's presence on the platform does not, in my view, substantially detract from the clear and foreseeable detriment to safety which was present in this case. I accept the submissions of the prosecutor that the serious risks posed by unguarded nip points on a conveyor to entangle a worker or others and cause serious injury or death exist irrespective of what Mr Banville was doing at the particular place at the time of his death. 42 In my view, there can be no doubt that Mr Banville's work duties could have caused him to access the platform at the top of the conveyor. Although I am not satisfied beyond reasonable doubt that Mr Banville was on the platform in order to observe the workings of the conveyor at the time of the accident; that scenario is but one example of the possible reasons for his presence at that spot. Mr Hodgkinson sought to draw a distinction between what was a place of work for operational as opposed to maintenance personnel. That distinction was not available on the evidence. It was admitted that Mr Banville often operated the quarry on his own and that he often performed some maintenance tasks. That much was evident from the discussion held between Mr Banville and Mr Hoipo on the day of the accident concerning the repair to the rubber skirting. 43 The detriment to safety occasioned by the presence of an unguarded conveyor in a place where workers may be present in the course of their duties was added to by the other failings identified in the particulars to the charge. The danger posed by the conveyor was enhanced by the fact that there was no emergency stop button or lanyard trip wire on the conveyor. The stop button was some two metres from the position where Mr Banville was found. The drive belts and pulleys on the conveyor were also unguarded and there was no proper access to the platform. I also accept that there was no proper method of observing the operation of the conveyor or the flow of sand into the mixing box except from the platform. 44 The second factual dispute concerned the final position of Mr Banville. The prosecutor, supported by the findings of Inspector Chilman and Inspector Johnson, submitted that Mr Banville had become entangled when the hand rail on the platform gave way whilst he was leaning over the conveyor in order to observe its flow. The defendant contended that this interpretation was inconsistent with the technical evidence concerning the rail and the medical evidence concerning the injuries sustained by Mr Banville. The defendant refuted the suggestion that the hand rail had failed and contributed to the accident. 45 Again, the evidence presented does not permit a finding to the requisite standard that Mr Banville became caught when the hand rail gave way whilst his weight was on it. I note that both Inspector Chilman and Inspector Johnson conclude that this is the most likely cause of the accident. I particularly note Inspector Johnson's assessment that the rail would support only a mass of approximately 15 kilograms before it failed. However, I must be satisfied beyond reasonable doubt that the hand rail failed if I propose to take that fact into account in a manner which is adverse to the defendant. In my view, significant doubt was raised by the defendant. 46 However, in my view, the danger presented by the operation of the unguarded conveyor was serious regardless of whether Mr Banville became entangled in the mechanism as a result of falling through the hand rail on the platform or whether he became so entangled whilst standing or crouching on the platform and was then dragged through the hand rail. In fact, it may be argued that the second scenario (that proposed by the defendant) indicates the existence of a more serious risk. If Mr Banville became caught whilst he was on the platform, then the conveyor presented an inherent danger to anyone who was on the platform irrespective of whether there was any fault in the protective railing. In any event, either scenario amply demonstrates the risks to safety which are inherent in permitting the existence of unguarded machinery in a place where people are likely to be working. Consideration 47 It is convenient to commence the determination of penalty by considering the submissions advanced on behalf of the defendant in relation to its corporate structure and financial circumstances. Mr Hodgkinson did not seek to argue impecuniosity on the part of the defendant, but submitted that the Court should nonetheless have regard to the fact that the defendant's operation is a small enterprise and the fact that the financial burden of any penalty would fall upon Mr Hoipo. 48 Mr Hodgkinson did not submit that the Court was required to treat the defendant as an "individual" for the purposes of sentencing so as to detract as a matter of law from the maximum available. Rather, it was submitted that as a matter of discretion the Court should take into account the financial circumstances of the defendant and the fact that its corporate structure was in reality a vehicle for Mr Hoipo's personal activities. In this regard, I note the judgment in Inspector Gordon v MIJO (NSW) Pty Limited (unreported, Cullen J, CT1002 of 1993, 2 December 1993), in which his Honour commented (at 5): The Court does not have a discretion to consider the maximum penalty at some level other than that provided by the Statute. Where a corporation is involved, the appropriate maximum penalty is that applicable to a corporation and not to an individual regardless of how or why the corporation was established. The three judgments of the Chief Judge in Inspector Robins v CT Plumbing Pty Limited (unreported, Fisher CJ, No 522 of 1991, 16 December 1991), Mauger v Krcmar Engineering Pty Limited (1993) 47 IR 359 and Inspector Young v Hidane Pty Limited (unreported, Fisher CJ, CT 1113 of 1993, 30 September 1993), do not support this submission. Individual factors going to capacity to pay are not relevant in the determination of penalty. They may be relevant at a later time in terms of any application the defendant may make as to consideration of payment, but they are not relevant as to the determination of penalty. 49 I respectfully agree that the Court has no discretion to apply a maximum penalty other than that prescribed by the legislation: see also WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Co Pty Limited (unreported, Walton J, Vice-President, Matter No. IRC1072 of 1998, 4 February 2000) at 23 - 24. 50 It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (unreported, Wright J, President, Matter No. IRC3418 - 3423 of 1997, 24 May 1999 at 41). The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201. 51 Although the defendant's operations clearly represent more than Mr Hoipo's personal exertions, I accept that those operations are modest. The copy of the defendant's 1998 Income Tax Return indicated that for that year the defendant's total operating profit was approximately $260,000 and taxable income was just under $70,000. In his statement tendered in evidence, Mr Hoipo also made reference to economic difficulties being encountered in the Mangrove Mountain area at the present time which have affected his chicken farm which is operated at the same site. The penalty to be imposed should reflect these considerations. However, I respectfully agree with the opinion expressed by Wright J in Ferguson v Nelmac that the fact that the penalty would place a severe burden on the defendant does not necessarily mean that the Court will not impose a heavy penalty. A heavy fine may nonetheless be imposed if the circumstances of the offence or considerations of general deterrence demand such a penalty. 52 As to the general principles applicable to sentencing in this matter, I refer to and adopt the discussion of sentencing principles in WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd and another (unreported, Walton J, Vice-President, Matter No. IRC 1104 of 1998, 4 February 2000, 87 - 98). I note that the maximum penalty prescribed for this offence is $500,00. In that respect I again refer to McDonald's (at 95 - 96). 53 As to the question of the gravity or seriousness of the offence, I am satisfied that the offence is a serious one. The presence of unguarded machinery, such as conveyors, in the workplace is one of the most pernicious and infamous dangers to the health and safety of workers. It is the very type of danger which has prompted persistent legislative attempts by governments to compel employers to correct such obvious and serious faults in the systems and plant which are employed as part of their operations. The seriousness of the detriment to safety is amply illustrated by the tragic events which precipitated this prosecution. 54 A major aspect of the submissions advanced on behalf of the defendant in this case concentrated upon the doubt which surrounds the reasons for Mr Banville's presence on the platform at the top of the conveyor at the time of accident. I have previously indicated my finding in relation to those matters. I do not consider that the inability to determine what Mr Banville was doing immediately prior to his death has more than a moderate impact upon the culpability of the defendant and hence on penalty. 55 The uncertainty surrounding the actions of Mr Banville prior to his death was said to impact upon the foreseeability of the risk to health and safety. The foreseeability of a risk to health and safety may be a factor to be taken into account when assessing the culpability of a defendant. In Department of Mineral Resources of NSW (Chief Inspector McKensey) v Kembla Coal and Coke Pty Limited (at 37), the Court said: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector James Swee Ch'Ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT 1163 of 1996, 28 May 1997) at p17; and University of Sydney (at 16). The proper test of foreseeability in these circumstances is not whether a lawyer or engineer could conceivably have foreseen the risk which existed but whether or not the ordinary jury person or reasonable observer could have done so: see University of Sydney (at p11). 56 However, the Court and its predecessors have noted on a number of occasions that the general duties under the Act are directed at obviating "risks" to health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158 - 159 and Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 452 - 453. Proof of the cause of a particular accident is not a necessary aspect of the offence. Thus, it is the foreseeability of the detriment to safety, rather than the foreseeability of the precise circumstances of the accident which is relevant to the culpability of the defendant. 57 I acknowledge this is not a case in which an employee has been required to spend their working day operating a machine which is both inherently dangerous and not appropriately guarded. Mr Banville was required to be in the vicinity of the conveyor, but not necessarily on the platform at the top of the conveyor. The defendant's culpability must be assessed against this background and the penalty to be imposed reduced accordingly. However, as I have found that Mr Banville may have had cause during to the working day to ascend the platform, the risk presented by the presence of unguarded machinery in a place which Mr Banville may frequent as part of his work was obvious and serious. In my view, Mr Hodgkinson's submissions erroneously focus upon the foreseeability of precisely what Mr Banville was doing prior to the accident, rather than upon the foreseeability of the detriment to safety which ultimately caused his death. 58 There is a significant aggravating factor present in this case. The defendant's premises were inspected by Inspector Johnson of the Department on 29 March 1995; over two years prior to the accident. A letter was subsequently sent to the defendant dated 7 April 1995 requiring various modifications to be made to the plant and machinery at the site. One of the modifications required was that the nip points on conveyors be guarded to prevent injury. According to Mr Hoipo, the other conveyors (that is, other than conveyor No. 3 on which the accident occurred) were guarded following Inspector Johnson's letter. 59 It is useful, in this regard, to record the observations which were made by the Full Bench in WorkCover Authority of NSW v Waugh. That case was an appeal by the WorkCover Authority against sentences imposed by a single judge of the Commission on grounds of inadequacy. In the course of upholding the appeal and increasing the penalty imposed on the corporate defendant, the Full Bench commented (at 100): When considering a statute giving expression as a matter of public policy to standards of safety, management has a positive obligation of informing itself of circumstances of safe working. In this case safe working required the guarding of an obviously dangerous running nip point, adequate safety instruction and, training. The Act and common-sense require that managements who employ persons daily in an admittedly dangerous industry do know elementary facts about guarding dangerous parts of machines and safe working. Ignorance of this kind is not only not an excuse, it amounts to an aggravation of the offence. After an employee was injured seriously and left with permanent injuries in December 1992 any ignorance of the danger, if it existed, was abolished; yet no rectification took place. Action to remedy the situation only occurred after a second inspection on 24 February 1993 and from which the further information arose. When challenged the personal defendant, Mr Waugh, who speaks for the company, accepted the necessity for the guards by saying - "I just never got around to it." Such an answer is insupportable and must be seen as a serious aggravation. Her Honour's finding in this regard are entirely clear. 60 As was said in Waugh, ignorance of such a fundamental safety measure as guarding the moving parts of a conveyor would not constitute an excuse. However, the fact that the defendant was alerted to the dangers posed by the conveyors and failed to take any action must, on any view, aggravate the seriousness of the offence: see also WorkCover Authority of NSW v C I & D Manufacturing Pty Limited (unreported, Fisher CJ, Matter No. CT1192 of 1994, 14 December 1995) at 13 and Campbell v Neaves (unreported, Hungerford J, Matter No. CT1150 of 1995, 29 March 1996) at 13. No explanation was provided by the defendant as to its failure to take the remedial action requested by the Department. Had the defendant done so, there is no doubt that the accident could have been avoided. 61 Further, the failure of the defendant to remedy the defects in its plant and machinery identified by Inspector Johnson must also be seen in the context of the basic, obvious and inexpensive remedial steps which were available. At the commencement of the hearing, the prosecutor tendered a photograph depicting the guarding which had been placed on conveyor No.3 following the accident. Whilst it is commendable that improvements were made after the accident, the actions taken were such as to demonstrate the simple and decisive steps which could easily have been taken to prevent the accident occurring: see WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997) at 22. In effect, the perfunctory nature of the improvements which were required reveals the seriousness of the offence. 62 Various factors were raised in mitigation by the defendant. I accept that it is appropriate to consider, in mitigation of penalty, the early plea of guilty entered on behalf of the defendant as well as the fact that the defendant, and Mr Hoipo in particular, personally and forthrightly co-operated with the Department in the investigation of the accident. Both considerations require a reduction in the penalty which may otherwise have been imposed. I adopt my discussion in McDonald's (at 141 - 143) as to the relevance of these considerations in sentencing. 63 Mr Hodgkinson also submitted that I should have regard to the personal impact of the circumstances of the accident on Mr Hoipo. In his statement of evidence, Mr Hoipo made the following statements: From the time Colin died, I found the personal stress associated with the circumstances very difficult and commenced a process of withdrawal from my family and friends. The Coronial Inquiry was held on 20 January 1998 and I attended and was called to give evidence at that Inquiry. I found the period between the incident and the Coronial Inquiry very difficult on a personal basis having suffered significant withdrawal and depression. I found the Coronial process itself stressful although I was hopeful that as a consequence of the holding of the Inquiry there may be an answer provided as to why Colin was at or about the top end of the wash plant so that I could finally understand the reason for this tragedy. Unfortunately, the Coroner was also unable to conclude why Colin was in the area in which he was found. I have found the proceedings including the present ones arising out of this incident very stressful. At the time of the accident, my operation was a small one and as I have explained Colin was not only an employee but also a long term and good friend. As a consequence I have suffered the loss of his friendship as well as the trauma of the incident on a work basis. I know Colin left behind him a family that have had difficulty as a consequence of the lost income. I continue to retain contact with Colin's widow and children and have done what I can to ensure that their entitlements pursuant to Workers Compensation legislation have been made as quickly as possible. 64 I accept that Mr Hoipo's regret and contrition are genuine. Contrition, repentance and remorse after the offence are mitigating factors which may lead to a reduction in the sentence which may otherwise have been imposed: see Neal (1982) 56 ALJR 848 at 852. I also note that, although the quarry continues to be owned by the defendant, it is now operated by a third party and various improvements have been made. The personal impact of Mr Banville's death on Mr Hoipo has clearly made this a very difficult time for him. He has, in a real sense, already paid a significant penalty. Nonetheless, the offence is such that the imposition of a significant penalty is required. 65 I have not been informed that the defendant has any relevant prior conviction. I have also taken this matter into account as a factor in mitigation of the offence. Penalty 66 For the foregoing reasons, I consider that an appropriate penalty with regard to the offence under s15 of the Act to be a fine of $80,000. In determining the appropriate penalty, I have had regard to the seriousness of the offence and the aggravating factor of leaving a perceived danger unchecked even after the Department had identified the danger and required it to be addressed. The penalty which may otherwise have been imposed has been reduced by reference to the mitigating factors I have mentioned, including the burden which a larger fine would impose on Mr Hoipo, the plea of guilty and co-operation with the Department and the contrition expressed by Mr Hoipo. 67 I make the following orders: 1. The defendant is fined the sum of $80,000, with a moiety thereof to the prosector. 2. The defendant shall pay the costs of the prosecutor as agreed or assessed. 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