Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Templeton v Haddon Rig Pty Ltd [2005] NSWIRComm 284 PROSECUTOR Inspector Amanda Templeton FIRST DEFENDANT Haddon Rig Pty Ltd PARTIES: SECOND DEFENDANT George Brereton Sadlier Falkiner FILE NUMBER(S): IRC 6501 and IRC 6502 of 2004 CORAM: Staff J CATCHWORDS: Occupational Health & Safety Act 2000 - Section 8(1) and 26(1) - Use of grain auger rural property - Fatal accident to farm employee - Principles - Failure to provide safe system of work - Failure to instruct train and supervise - Plea of guilty - Objective seriousness of the offence - Improvements made in safety system following accident - General and specific deterrence considered - Subjective factors considered - Sentencing principles discussed - Application of s 10 of the Crimes (Sentencing Procedure) Act refused - Penalties imposed - Time to pay fine considered Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 2000 LEGISLATION CITED: Fines Act 1996 Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 Cameron v R (2002) 209 CLR 399, (2002) 76 ALJR 382, 187 ALR 65 Camilleri's Stockfeeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Ankucic v William George Young [2004] NSWIRComm 186 Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Inspector Chris Chadwick v B H MacLachlan (NSW) Pty Ltd [2004] NSWIRComm 331 Inspector Frank Glass v BT Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79 Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322 Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213, [2005] HCA 25 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 CASES CITED: R v Lawrence [2005] NSWCCA 91 R v Oldbrich (1999) 199 CLR 270 R v Place (2002) 81 SASR 395, (2002) 189 ALR 431 R v Powell (2001) 81 SASR 9 R v Radich [1954] NZLR 86 R v Rushby [1975] 1 NSWLR 594 R v Sharma (2002) 54 NSWLR 300 R v Thompson, R v Houlton (2000) 49 NSWLR 383 Sydney County Council v Coulson (1987) 21 IR 477 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 Wong v The Queen (2001) 207 CLR 584 WorkCover Authority (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78 WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd, Joseph Andrew Litchfield, Jane T Michilis Pty Ltd (formerly known as Michilis Pty Ltd) (ACN: 073 407 397) [2003] NSWIRComm 240 WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2005] NSWIRComm 101 WorkCover Authority of NSW (Inspector McColl) v Dowdon Contracting Pty Ltd & Ors [2003] NSWIRComm 477 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Anor (No 2) (2000) 99 IR 163 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 HEARING DATES: 06/20/2005 DATE OF JUDGMENT: 08/12/2005 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms A Devasia WorkCover Authority of NSW LEGAL REPRESENTATIVES: FIRST AND SECOND DEFENDANTS Mr S Stanton of counsel Solicitor: Mr A Thorpe Aitken McLachlan Thorpe JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staff J 12 August 2005 Matter No IRC 6501 of 2004 INSPECTOR AMANDA TEMPLETON v HADDON RIG PTY LTD Prosecution pursuant to s 8(1) of the Occupational Health & Safety Act 2000 Matter No IRC 6502 of 2004 INSPECTOR AMANDA TEMPLETON v GEORGE BRERETON SADLIER FALKINER Prosecution pursuant to s 26(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2005] NSWIRComm 284 1 On 6 November 2002, Malcolm Vial was employed as a Jackeroo at Haddon Rig Pty Ltd ("the corporate defendant"), a rural farming and livestock property located 30 km west of Warren, New South Wales. 2 The personal defendant, George Brereton Sadlier Falkiner is the managing director of the corporate defendant. The property was purchased by the personal defendant's grandfather in 1916. 3 On 6 November 2002, Mr Vial, an employee of the corporate defendant, had been assigned to feed sheep with grain. This required Mr Vial to obtain grain by the use of an auger from a silo, known as "silo 1", into a Mitsubishi feeder truck for the purpose of distribution to sheep. 4 At about 1.00 pm on 6 November 2002, Mr Vial sustained fatal injuries when he was crushed between an auger ("the blue auger") and the doorframe of silo 1. There were no witnesses to the incident as Mr Vial was working alone at the time the accident actually occurred. 5 The defendants, who have pleaded guilty, were prosecuted by Inspector Templeton pursuant to s 8(1) and s 26(1) of the Occupational Health & Safety Act 2000 ("the OH&S Act"). The relevant sections provide as follows: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 26 Offences by corporations—liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 6 The charge against the corporate defendant was as follows: FAILED TO Ensure the health safety and welfare at work of all its employees, and in particular, Malcolm Vial, contrary to Section 8(1) of the Act. 7 The particulars of the charge were: a) At all material times Haddon Rig employed Malcolm Vial. b) At all material times Haddon Rig occupied premises comprising 54,400 acres at Quambone Road, Warren in the State of NSW ("the farm"). c) At all material times Haddon Rig operated a business of farming livestock, cereals and cotton. d) At all material times Haddon Rig required its employees to use augers for the purpose of removing grain from silos. e) Haddon Rig failed to adequately assess and manage risks associated with using augers to auger grain from silos at the farm. f) Haddon Rig failed to provide and maintain a safe system of work for its employees who were required to operate augers at the farm. g) Haddon Rig failed to provide such information, instruction and training in relation to the operation of augers and in relation to augering grain at the farm. h) Haddon Rig failed to provide adequate supervision for its employees who were required to operate augers at the farm. 8 The pleas of guilty were entered in circumstances where some of the factual matters relied upon by the prosecutor remained in dispute. These matters were addressed by the parties on the hearing of submissions on penalty. The prosecutor bears the onus of establishing such disputed facts, adverse to the defendants, to the criminal standard and the defendants bear the onus to the extent that facts may be taken into account in favour of the accused if they are proved on the balance of probabilities: R v Oldbrich (1999) 199 CLR 270. 9 The prosecutor tendered a statement of facts, which, omitting formal parts, stated: ... 4. At all material times Haddon Rig operated the business of farming livestock, cereals and cotton at a farm at the premises of Haddon Rig at Warren. The farm comprised 50,000 acres on the eastern side of Quambone Road and 4400 acres on the western side of Quambone Road, Warren. 5. At all material times Haddon Rig employed a number of workers at the premises including, Mr Malcolm Vial ("Mr Vial") who was employed as a Jackeroo and Mr Andrew Maclean ("Mr Maclean") who was employed as a Stud Manager. 6. Haddon Rig owned and used a number of augers identified as a Blue Liset 40 foot 9 inch auger ("blue auger"), a grey Mitsi auger ("grey auger") and a "cream auger". These augers were provided for use by employees at the farm in distributing feed to stock. 7. Mr Vial had operated the blue auger and (Coombaya mix truck) in the company of a senior jackeroo between 10 June and 14 June 2002. He operated the blue auger alone from 17 June 2002 to 21 June 2002. 8. On 6 November 2002 Mr Vial was working on the farm. He was assigned to feed sheep and was performing the tasks associated with the job. Mr Maclean set up Mr Vial with the grey auger on to auger grain from a silo, known as "silo 1", into a Mitsubishi feeder truck for the purpose of distribution to stock. 9. Shortly after 1pm on 6 November 2002, Mr Maclean found Mr Vial trapped between the blue auger and the doorframe of silo 1. Mr Vial was deceased at the time. 10. At about 1:00 pm on 6 November 2002 Mr Vial sustained fatal injuries when he was crushed between the blue auger and the doorframe of silo 1. There were no witnesses to the incident. Mr Vial was working alone at the time of the accident. 11. At the time of the incident, Haddon Rig had employed Mr Vial for approximately 6 months. He was 19 years old at the time of his death. 12. On 6 November 2002 in response to a verbal accident notification Inspector Templeton attended at the farm. She performed a factual inspection and took photographs. She observed the following at the at the (sic) farm: a) 7 silos in a line and numbered 2 to 8 consecutively. Located behind these silos was another silo identified to her by the director of Haddon Rig, Sally Falkiner, as "silo 1". b) Silo 1 was a round rust coloured silo with walls from the ground to a height of approximately 2700 mm. Silo 1 was covered with a corrugated iron roof. c) On one side of the wall of silo 1 was a doorway frame approximately 1000m (sic) wide with a gap of approximately 920mm. From outside the silo a door was hinged on the left side of the door frame. The lower portion of the door contained a hole with a cylinder inserted at an angle of approximately 40 degrees and approximately 900 mm in length ("chute"). d) Situated in the doorway of silo 1 was the blue auger. e) Mr Vial, deceased, was lying on the ground between the door of silo 1 and the blue auger, covered by a sheet. f) Silo No. 1 contained grain piled in a mound. The blue auger was positioned to allow grain to be fed into the tray of the truck. There was no grain in the truck. g) Located adjacent to the rear right tyre of the blue auger were tyre marks measuring approximately 1050 mm. Located between the rear tyres was the control panel for the blue auger's engine with a number of buttons and gauges. h) Located approximately 2.5 metres from the feeder end of the blue auger within silo 1 was the auger movement control lever ("control lever"). Located on rear of the blue auger at the top of the 'A' frame and in the doorway of silo 1 was a control lever for the blue auger's screw, jockey wheel and main barrel. i) Located on the bottom side of the 'A' frame at a distance approximately 1000 mm from the top of the 'A' frame was a metal brace and bolt bracing 4 hoses. The bolt appeared to have a red blood-like substance on it. 13. As a result of her investigations, Inspector Templeton concluded that Mr Vial had been attempting to fit the blue auger's feed end into the door of silo 1, as it would not fit into the chute. As he manoeuvred the auger into place within the door of silo 1 he was crushed between the 'A' frame of auger and the silo doorframe. 14. Mr Vial was shown how to operate, move and auger grain on two types of augers when he spent a week with Senior Jackeroo David Irving, between 10 June 2002 and 14 June 2002. After that Mr Vial had been required to operate an auger once every three weeks. 15. Mr Maclean provided training to Mr Vial on 30 May 2002 when he was shown how to move the auger and auger grain. 16. Mr Vial had been instructed by Mr Maclean that if an auger was faulty whilst performing tasks he should advise his supervisor. On 6 November 2002 there was no supervisor close by, the nearest one, Mr Maclean was approximately 1.5 km away from the site of silo 1, where the incident occurred. The blue auger was close by silo 1 and freely available for use by Mr Vial. 17. Mr Vial was not instructed on how to use the blue auger in silo 1 although it was the usual practice at Haddon Rig that augers could be interchanged should one fail to work. 18. Mr Vial was not provided instructions on what to do if an auger did not fit into the chute. The Haddon Rig Occupational Health and Safety Manual did not provide a safe procedure for the interchange of augers. 19. Haddon Rig failed to provide adequate supervision as Mr Vial was working alone at silo 1. It was usual for Mr Vial to use the blue auger when the other one was not working and there were two, possibly three augers locatable within the area that Mr Vial was working near silo 1. 20. The system of work for working with augers required that where an auger failed to work or was unable to be used, the auger be switched off and a supervisor be informed. 21. At no time prior to accident had Haddon Rig conducted a risk assessment, which identified the hazards arising from the use of an auger through a silo door. 22. On 7 November 2002 Inspector Templeton issued a prohibition notice No 137827 in relation to the operation of the blue auger requiring that certification be provided that that the plant (the blue auger) was mechanically sound and each of the control functions are operating correctly. 23. In compliance with the notice Haddon Rig retained Mark Robinson of Mark Robinson Agricultural Repairs, Warren, to check the auger. In a letter dated 8 November 2002, Mr Robinson certified that all functions on the blue auger were operating normally. 24. Since the accident Haddon Rig has decommissioned silo 1 and replaced it with an open sided storage shed. Haddon Rig has introduced a workplace procedure requiring that all self propelled augers are to be operated by at least two people at all times, including the movement of a self propelled auger and when it is being operated. Haddon Rig has modified the forward/reverse levers of the blue auger and installed an emergency switch on the movement control panel of the blue auger. 25. Neither of the defendants have any prior convictions under the Act. 10 The defendants also tendered a statement of facts. Essentially, the areas of disputed facts are as follows: (i) The defendants contend that Mr Vial operated the blue auger in the company of Clifford Williams, a Jackeroo of 10 years experience, between 10 June 2002 and 14 June 2002 and that he operated the blue auger alone from 18 June 2002 to 21 June 2002. (ii) The defendants do not accept that Mr Vial was shown how to operate, move and auger grain when he spent a week with senior Jackeroo, David Irving, between 10 June 2002 and 14 June 2002 or that he was required to operate an auger once every three weeks. The defendants contend that Mr Vial used the auger and mixing truck equipment working alone, without incident, as follows: 18 June 2002 to 2 August 2002 16 September 2002 to 21 September 2002 4 November 2002 and 5 November 2002 (iii) In respect of paragraph 15 of the prosecutor's statement of facts, the defendants contend that Mr Maclean also showed Mr Vial how to operate the auger and that he was given safety instruction. (iv) In respect of para 16, the defendants contend that there were supervisors close by when the grey auger broke down. Mr Falkiner was in the office at the homestead about 600 metres away and Mr Maclean was approximately 1.5 km away from the site of silo 1. The defendants also contend that there was a fully operational motor bike at the site ("Silo 1") available for use by Mr Vial. (v) In respect of paragraph 17 of the statement of facts, the defendants deny that Mr Vial was not instructed on how to use the blue auger. (vi) In respect of paragraph 18 of the statement of facts, the defendants do not accept that Mr Vial was not provided with instructions on what to do if an auger did not fit into the chute. (vii) In respect of paragraph 21, the defendants deny that prior to the accident it had not conducted a risk assessment. The defendants contend that they had conducted a risk assessment prior to the accident when preparing its safety manual. The risk assessment did not identify any hazards arising from the use of an auger through a silo door. 11 In respect of the disputed facts, I am satisfied that they have been established, on the balance of probabilities, by the evidence of Mr Falkiner and Mr Maclean, which I will turn to consider shortly. 12 It was common ground the defendants had co-operated and assisted WorkCover in their investigations. 13 The defendants contended that they had expressed and showed contrition, remorse and shown meaningful acceptance of their responsibilities for the accident and that they had taken substantial steps since the accident to improve their occupational health and safety generally. This had occurred specifically at the silo site. The defendants have also sought to foster and encourage a culture of safety. 14 Furthermore, the defendants contend the manufacturer of the auger, which is no longer in business, contributed to the risk of the accident by not providing any warnings, or appropriate safety controls for a self-propelled auger. 15 Apart from the accident in question, the defendants have a good safety record. There are no outstanding matters under the OH&S Act as at the date of the sentencing hearing. 16 The prosecutor also tendered a factual inspection report of Amanda Templeton, District Coordinator, WorkCover Authority of NSW, Dubbo dated 7 November 2002 (Ms Templeton is now located at the Wollongong office of WorkCover). 24 colour photos, the majority of which depicted the auger positioned in silo 1, were also tendered. The Evidence 17 An affidavit of Inspector Templeton dated 1 November 2004 was tendered together with witness statements of the personal defendant and Andrew Maclean which had been taken by Inspector Templeton. 18 Inspector Templeton gave some short evidence regarding the records of interview conducted with the personal defendant and Mr Maclean. 19 During cross-examination, Inspector Templeton conceded that there was no document within New South Wales issued by WorkCover, indicating the risks with augers from crushing accidents. She stated that warning notices to other farmers of the risk of crushing injuries from augers were not issued by WorkCover as it was foreseeable. 20 Furthermore, Inspector Templeton acknowledged that the defendants implemented and complied with the prohibition notice, including instituting a two-man operation for augers soon after the accident. The Inspector further acknowledged that the defendants had extensively cooperated and assisted WorkCover in its investigations. 21 Mr S Stanton of counsel, who appeared for the defendants tendered an extensive affidavit with detailed annexures of the personal defendant and an affidavit of Andrew Maclean, a Stud Manager employed by the corporate defendant. Each was required for cross-examination. 22 In his affidavit, the personal defendant addressed the following matters: (i) The corporate defendant was purchased by the personal defendant's grandfather in 1916. (ii) The property is owned by the corporate defendant, a subsidiary of GBS Falkiner Investments Pty Limited. (iii) The company has four directors. (iv) The property comprises approximately 54,400 acres and is located 30 km from Warren. (v) The personal defendant has extensive experience in mixed farming and occupies the office of safety officer for the corporate defendant. (vi) Prior to November 2002, there had been no fatality in the workplace of the corporate defendant during its trading history. (vii) The personal defendant expressed his great remorse at the trauma caused to Mr Vial's family and stated that he was distraught that this accident had occurred and said that he would do everything in his power to help prevent a fatal accident ever again occurring at the corporate defendant. 23 In his role as safety officer, the personal defendant stated that following discussions with WorkCover Inspectors in Dubbo, in approximately 1997, he was advised to write a safety manual to cover all of the corporate defendant's enterprises. At that time, there was no formal blueprint commercially available for safety on mixed farming properties and no formal documentation available from WorkCover. Since that time, the personal defendant has obtained the following manuals, implemented and complied with their guidelines: (A) Shearing Shed, Centre For Agriculture Health and Safety July 2003. (B) Farmsafe Accredited Farms ™ by Farmsafe Australia Inc. (C) Fuel Tanks Australian Institute of Petroleum Standards. (D) WorkCover "Protecting Young Workers from Work place Hazards". (E) Country Energy "Cotton on to powerlines Safety" March 2003. (F) Workcover, "Pesticides and your Health and Safety". (G) Workcover, "Moving Heavy Objects" 1996. (H) Workcover Storage and Licensing Poisons on Farms March 1996. 24 In 1997 the personal defendant stated that he conducted a risk assessment with the assistance of Forbes Murcock, the then Stud Manager, Andrew Maclean and Lance Brown, a qualified fitter and turner. Employees were interviewed for their input. 25 In conducting the risk analysis, the personal defendant stated that he was familiar with and recognised the risks of operating an auger, namely the dangers of working in confined spaces, the danger represented by "the flight" (the screw mechanism of the auger), and the possibility of electrocution if contact is made with power lines. These risks were addressed in the safety manual. The personal defendant did not recognise any hazard relating to a crushing accident by an auger and hence it was not addressed. 26 The corporate defendant's safety manual is continuously updated. All employees are issued with a copy of the safety manual and are required to read and sign the manual upon first arrival as an employee. 27 The safety manual has currently been rewritten and updated. The personal defendant stated that he believed that the corporate defendant had been at the forefront of rural Australia in developing a safety manual as early as 1997. He stated that a commercially available blueprint for safety on mixed farming properties could not be purchased until 2004. 28 The personal defendant has been able to oversee the formal training of each member of staff by their relevant manager in the areas in which they are working. This had been achieved by 2000 by issuing "competency certificates" or diary notes, which are a documented record of the competency by particular personnel after a period of training has taken place and the manager has signed off the employee. An example of such documentation was annexed to the personal defendant's affidavit. 29 Formal occupational health and safety meetings were held with staff every three to six months which identified any new hazards, the actions required, and the upcoming work programme. Six months ago, the frequency of formal safety meetings was increased to monthly. However, an occupational health and safety assessment, from a risk point of view, is made on a daily basis when work is allocated in the morning, to ensure that staff are competent to handle allocated tasks and if they have the correct safety gear. Annexed to the personal defendant's affidavit was a bundle of minutes and notes relating to safety meetings. 30 The personal defendant holds weekly management meetings with the senior managers of the corporate defendant, viz., the Livestock Stud Manager, the Farm Manager and the Cattle Operations Manager. Safety is a standing agenda item. Employees are encouraged to attend safety courses at TAFE in Warren and time off is given for this. Many of the Jackeroos have attained Certificate III and Certificate IV Agriculture whilst working for the corporate defendant. In March 2005, the personal defendant and Mr Maclean attended a farm management safety course in Gilgandra run by the NSW Farmers Association (the first course to be run by the NSW Farmers Association in that region). 31 All staff at the corporate defendant are issued with appropriate safety equipment such as helmets, goggles, gloves, masks, and it is a requirement that they be worn. 32 On 31 October 2001, the corporate defendant joined the WorkCover New South Wales programme to obtain a discount for Workers Compensation premiums, which required an audit to be conducted. An audit was conducted by the Australian Centre for Agricultural Health and Safety. The audit was achieved for the tax years commencing 30 June 2002 and 30 June 2003. 33 The personal defendant stated that he had endeavoured to foster and develop a culture of safety in the corporate defendant and that in respect of the safety manual, the corporate defendant had been an industry leader. The corporate defendant had also introduced a wool and sheep marketing initiative in which they worked co-operatively with 58 of their stud merino clients to lift the standards of shearing shed and clip preparation. This involved removal of all rubbish and unnecessary equipment from the shearing shed and surround yards; improving lighting and clearing work areas. Properties throughout Queensland, New South Wales and Western Australia embraced this initiative. 34 At the time of the accident, the corporate defendant employed 19 persons. Mr Vial commenced employment with the corporate defendant in April 2002, after working for 12 months as a Jackeroo at "Berwicks", Willowtree and attending Tocal Agricultural College, Riverina. Mr Vial reported to Daryl Irving, who in turn reported to Mr Maclean who was in charge of training and checking of Mr Vial and other staff for all operational competency. Mr Maclean has been employed by the corporate defendant since 1994 and Mr Irving has been employed since 1999 until his departure in 2003. Both persons were provided training and completed subjects at TAFE in Certificates III and in Mr Maclean's case, Certificate IV Agriculture. 35 Mr Vial was employed to work with all aspects of the stud: the cattle operation; the sheep operation including lambing; drenching and toe cutting; mustering; preparation for show and sales; and preparing and distributing supplementary feed to sheep. 36 The silos are located in close proximity to the station homestead. There are eight silos. With the exception of silos 1, 7 and 8, the remaining silos are self-emptying. Silo 1 has four chutes positioned around the silo in order to allow entry of a grain auger, to extract grain from the silo. Silo 1 was designed specifically for the corporate defendant by Geoff Parson, Farm Engineer, Nyngan, New South Wales in 1995. The door size is 96 cms and the chute size is 43 cm. 37 The door of silo 1 was kept closed at all times and there were two heavy metal bars across the door of silo 1 held in place by two clips. The bar could not be easily removed and in the personal defendant's opinion, it required a heavy steel instrument, such as a sledgehammer, to remove the bar by knocking it away. The bars were in place, as they had been for five years, on the morning of the accident, but had been removed by someone, presumably Mr Vial, prior to opening the door. 38 At the time of the accident, there were three augers in operation at the corporate defendant: a pencil auger, a grey auger and a blue auger. The blue auger is a LISET, self-propelled auger, and was the machine involved in the accident. This auger has now been re-built and fitted with self-centring hydraulic levers and a safety switch. This auger is powered by a motor which has a control panel. 39 The blue Liset auger has a drive mechanism which was controlled by a control lever three metres from the feeder end of the auger. If the lever is pushed forward, the auger will move forward and if the lever is pulled back, the auger will move backwards. There is also a hydraulic control box containing the levers, for lifting the auger up and down, putting the rotating screw into operation and lifting the jockey wheel up and down. 40 The personal defendant described the auger as follows: (a) This blue Liset auger was manufactured in Toowoomba in about 1990 and was one of the earliest self-propelled augers available on the market. (b) When this auger was released it had no safety switch fitted by the manufacturer. (c) The hydraulic control lever which activated the drive mechanism on the two main wheels did not have a self-releasing valve in the control box to stop immediately the drive mechanism to the wheels when the hand pressure of the operator was released from the lever. All new models include this safety feature. (d) There was also no manufacturer's warning signage on this piece of equipment. (e) There was no operations manual supplied with this auger. (f) On the personal defendant's understanding, the manufacturers of plant that did not feature these safety devices, were meant to contact the distributors of the equipment so that this safety device could have been retrospectively fitted. To the corporate defendant's knowledge, this did not occur. The corporate defendant had no contact with either the distributor or the manufacturer. 41 The blue auger was not normally used for silo 1 because it was harder to get it in and out of the chutes of the silo. 42 The personal defendant stated that he was aware from his own observations and discussions with Mr Maclean that Mr Vial used the blue auger on many occasions. 43 The corporate defendant had a checklist for machinery safety and training which included the blue auger. The personal defendant was informed by Mr Maclean and believed that Mr Maclean trained Mr Vial in the use of the augers and that Mr Maclean was satisfied with Mr Vial's ability to operate the equipment safely. Annexed to the personal defendant's affidavit was a diary note made by Mr Maclean of the training given to Mr Vial in respect of the use of augers. Under the heading "Verbal Risk Assessment" the following appears: - Safety on ensuring you do not get caught in it (flite) (sic). - Ensure when moving it is at low revs. - Any problems at all see the supervisors. 10 June, 14 June - Operated Augur /Cambooya (sic) mixer with Senior Jackaroo. Andy MacLean passed on machinery operations. He then worked onwards, 14 June - 21 June - Operated satisfactory until 4 November. 4 November - Shown how to access silo with grey auger through side access shoots, see note about 2 men operation: 44 The personal defendant stated that, in his opinion, a number of events, some of them unpredictable, came together on the day of the accident and created circumstances which facilitated the occurrence of the accident. These included: (a) The grey auger, which is normally used in silo 1, was not working on the day of the accident. (b) Mr Vial's supervisor, Mr Irving, did not know on the day of the accident that the grey auger was not working. It was the personal defendant's understanding that Mr Vial was not given an instruction by any person responsible for his supervision to insert the auger into silo 1 through the door. (c) Hugh Richards, a senior Jackeroo, was working in the silo area at the same time as Mr Vial but left the area before the accident occurred. The personal defendant believes had Mr Vial outlined his proposed actions to Mr Richards or had Mr Richards seen him doing what he apparently did (removing the bars), Mr Richards would have told Mr Vial not to remove the bars, nor try to insert the auger into the Silo door, but to follow procedure and insert the auger through the chute as he had been instructed. He also believed that Mr Richards would have advised that Mr Irving or Mr Maclean be contacted for instructions had he seen Mr Vial using the blue auger with respect to silo 1, opening the door to silo 1 and trying to position the blue auger through the door. (d) Mr Vial made a decision to move the grey auger away from silo 1 when it was not working rather than informing Mr Maclean or Mr Irving or the personal defendant that it was not working. (e) Mr Vial, apparently, decided to remove the two heavy steel bars that lay across the door of the silo and open the door when, to the best of the personal defendant's knowledge, Mr Vial had never been instructed to do so and in fact, would have been actively advised not to do so because the silo was full of oats. (f) The personal defendant believed that Mr Vial did not comply with the verbal instructions given by Mr Maclean on 30 May 2002: "Ensure when moving (auger) is at low revs" and endeavoured to move the blue auger when the motor was at high revs. The personal defendant holds this belief because of the skid marks left by the tyres of the blue auger on the ground as noted in Inspector Templeton's report. It is further evident that Mr Vial chose to move the auger at high revs from the force with which the auger crushed the deceased against the door of silo 1. (g) The personal defendant was also concerned that the auger was capable of pinning Mr Vial against the door frame rather than bumping him aside, particularly as there were no extrusions from the auger which could have caught Mr Vial, apart from a small bolt extending about ¾ inch from the auger. 45 The personal defendant stated that he had never witnessed anyone else open the door of silo 1 to insert an auger to remove grain and he had not seen the doors of silo 1 open in more than five years. 46 The personal defendant observed that the auger was not fitted by the manufacturer with a safety cut-off switch, or self-centring hydraulic control lever. He observed, had these two safety features been fitted by the manufacturer on the auger, the accident may not have happened as the auger would have stopped or been able to be stopped by the operator before injury could occur. The current models of augers on the market are fitted with these features making any risk of a recurrence of this type of injury very unlikely. 47 The personal defendant was advised by David Phillips, Risk Assessment Officer for the Victorian Farmers Federation, that the manufacturer of this particular model should have contacted the auger distributor who would have ensured that the above safety features were fitted on-farm. However, the personal defendant was informed by Mr Phillips that the manufacturer of the blue Liset auger has now gone out of business. 48 In the personal defendant's opinion, the combination of factors on the particular day were so unpredictable such that he described the accident as "extraordinary", as well as tragically sad and distressing to Mr Vial's family and his friends and workmates at the corporate defendant. The personal defendant stated that he would not have envisaged the accident occurring in the manner that it did, and that at the date of the accident, he had never heard of any injury or fatality having occurred in the manner in which Mr Vial met his death. 49 The personal defendant stated that it was open to Mr Vial to obtain further instructions from Mr Irving or Mr Maclean who on that day was working approximately 1.5 km away in the sheep yards. Mr Vial could have also spoken to the personal defendant who was in his office about 600 meters away, or used the two way radio in that office to contact Mr Maclean or Mr Irvine. 50 The personal defendant stated that there was an operating motor bike at the silo area which would have enabled Mr Vial to reach the sheep yards in about two minutes. Further, there was no "pressure" on him to prepare the feed quickly, because in fact the deceased had already carried out at least one successful mixing operation using the blue auger on the morning of the accident. 51 The personal defendant stated that prior to and at the time of the accident, there was no literature or warnings available as to the potential danger of crushing by a self-propelled or normal auger. At the time that the personal defendant was writing the safety manual, the only recognised danger inherent in augers were: being caught in the "flight" (the screw of the auger); being electrocuted by contact with power lines, or being asphyxiated within a silo. The personal defendant stated that he had made enquiries and to his knowledge there had been no other similar accident resulting from crushing by a self propelled auger in Australia. The danger was unidentified by the defendants, and does not appear in any literature that they received, and henceforth did not feature in their training. 52 The personal defendant described this accident in terms of his experience and knowledge as being unique. The personal defendant has spoken to various occupational health and safety experts of Farmers Associations throughout Australia and none are aware of such an accident occurring. 53 The personal defendant observed that the WorkCover Authority of New South Wales makes no specific mention of this particular hazard in its current literature, "Rural Safety Information Package". 54 The only publication that the personal defendant has found which refers to the possibility of a crushing death caused by a mobile auger is a publication entitled "Farm Machinery Injury - Improving the Safety of Grain Augers in Australia", published by the Australian Centre for Agricultural Health and Safety in July 2003 (after the accident). 55 The personal defendant attended Mr Vial's funeral with Mr Maclean. A commemorative stone and plaque have been erected at the Jackeroos' quarters in Mr Vial's memory. In March 2003, after the accident, Mr Vial's father and a close friend, spent almost a week with the personal defendant at the corporate defendant. Mr Maclean remains in regular contact with Mr Vial's father. 56 The personal defendant acknowledged that Mrs Vial has been deeply traumatised by the loss of her son and it was with this in mind that the defendants entered a plea of guilty at the earliest opportunity so as to minimise the possibility of Mr and Mrs Vial being involved in this litigation and to reaffirm their contrition and remorse. 57 After the accident, the corporate defendant took a number of steps to further improve occupational health and safety standards at the property. The blue Liset auger was fitted with the recommended safety features referred to earlier. Some of the defendant's older machinery has been decommissioned and/or sold. The remaining equipment meets occupational health and safety standards and/or has been upgraded as necessary to maintain a safe working environment. 58 The personal defendant has made the decision to decommission silo 1. The personal defendant stated that the accident was so tragic and had such an affect on employees of the corporate defendant that he no longer felt comfortable using the silo. It is now used for storage of machinery, safety gear and bagged feed supplements and will never be used again as a silo. 59 The personal defendant, after the accident, commissioned a risk identification survey from the National Safety Council of Australia Ltd. A copy of the survey report dated 17 December 2002 was annexed to the personal defendant's affidavit. The recommendations were immediately acted upon by the corporate defendant and with relevant licensed contractors. 60 The personal defendant set out the major items identified by the survey and complied with by the corporate defendant as follows: Staff Responsibilities - Formally documented, roles, responsibilities, duties and authorities of all managers and supervisors. As outlined by Managing Director, agreed to by personnel and updated. Electrical Work - Wiring of pumps, Earth leakage circuit breakers to all buildings, smoke detectors, inspected regularly, licensed electrician carrying out work. Chemical - Storage and disposal of empty containers, supply of personal protection gear. Central location for storage (Braemar). Safety courses for staff. Guards - Fitted to all pumps; machinery; augers Guard Rails - Fitted to all pumps, fuel tanks, water tank platforms. Housekeeping - all rubbish removed, workshops tidied Access ladders - fitted and modified to all silos and field bins (Child access) Machinery - Wool Press, Trucks; Tractors - De-commissioned or sold. Fire Extinguishers - Up-graded, fitted to all workshops, fuel bowsers; houses. Lighting - Pump Sights; Workshops; Woolshed Height awareness - harnesses provided, work methodology changed. Confined Space - No entry signage and no entry unless qualified personnel on-site Risk Management - Development & Implementation of Safety System. Managers have completed OH&S Managers Course (Gilgandra and Warren). Work Place Consultation - Regular meetings with staff. Log Books - Calendar kept in office of fire extinguishers and machinery inspections. 61 In December 2004, the corporate defendant commissioned the National Safety Council to return and undertake a compliance survey. The recommendations from this report have been carried out. Ongoing recommendations are being carried out and will continue to be fulfilled and updated. 62 The personal defendant stated that in addition to the Safety Council's recommendations, the following has been done: Work Practice guidelines - STAFF: Supervision of Staff - Staff are given their orders at 7 a.m. This involves the job they are expected to undertake, where and how with any additional instructions. All jackeroos have been issued with their own personal 2-way radio which allows constant monitoring of their activities in the work-place throughout the day. Morning Tea and Lunch are available in the Jackeroo Quarters - providing an opportunity for further interaction with supervisors. Risk Assessment. Prior to commencement of the job on a daily basis, the Manager and supervisor carry out a risk assessment of the job, equipment involved and give specific instructions to ensure work is done safely, such as wool loading and machinery operation. Rules. All new staff are inducted to farm procedures and the correct rules whilst working on our farm. Safety Meetings - As part of weekly management communication with all staff. Minutes from previous meeting are reviewed, and current and upcoming work programmes are outlined. We discuss with staff any problems in the workplace, from the point of view of hazard identification or potentially dangerous work practices. We discuss subsequent actions by whom, time frames and monitoring. Haddon Rig Safety Manual - Introduced in 1997 and revised 2005 (Nancy Marsh, Auscott/ Twynham specifications) to include all OH&S requirements. Accident/First Aid. Ensure that all staff know where Accident Register and First Aid stations are, and briefed on Emergency procedures and location of Emergency File. Employee Files. Ensure all details of Employees are filled in correctly on employment. Contractors - Safety meetings prior to start and work programme outlined, appropriate documentation. Training - Additional TAFE Courses for Staff are undertaken, and personnel files carry references to such, Certificates copied. Certification - Tickets for equipment operation; Chemical Safety and specific work practices. Courses - Safe Handling of Stock - Dec 2004. For all stockmen, to lower stress on stock and improve job efficiency. Dubbo TAFE, Shearing Improvement and Shed Safety - March 2005. For all shearer's (sic) and Shed Hands. Hazard Identification - Safety audit inspector (NASCA) and senior management plus in consultation with all employees to identify risks. ADMINISTRATION: Accident/Injury Register Monthly Documented OH&S meetings to ensure all management and staff are constantly kept up to date with maintenance and farm issues if any. Minutes kept in the HR Office. Personnel - Keep up to date personnel files - with training Certification. Contractors - Ensure they are inducted correctly to farm and Farm (sic) procedures and documents are completed prior to commencement of work. Ensure insurance policies are current and maintain a copy. Documents/Manuals - Downloaded via web; hard-copies purchased; Equipment manuals - all kept in office and copies made as necessary - included in HR Safety Manual. ON FARM SAFETY MEASURES Safety Signage - posted on all equipment, working areas (inside and out) such as Chemical sheds, fuel pumps, silos. Locks - Silos; Chemical Sheds Helmets - Provided and mandatory for motorcycle operation Seat-Belts - In vehicles and mandatory use on-farm. 2-Way radios - On bikes/vehicles/wool shed/houses (Homestead; Manager's residence) First Aid - Kits checked and maintained regularly. Put in every vehicle. Fire Blankets and Extinguishers - kept in noticeable location, with signage; checked regularly. All fuel bowsers; sheds; trucks; buildings. Safety Gear - masks, overalls, eye glasses, helmets, hearing protection, gloves, clothing. Electrical - all equipment and wiring checked and up to current OH&S specifications. Fuel Bowsers - re-configured; locked Plant, equipment, machinery and vehicles. Monthly maintenance and safety report. Safety Harness - Purchased and to be used as appropriate. Shearing Shed - Floor segments replaced/re-configured chutes and catching pens to reduce back-strain Power Lines - Heightened to allow clearance for trucks/machinery. Large Equipment - Sold/De-Commissioned high risk/unsafe equipment ie silos; Motor vehicles; trucks; tractors; augers to Pickles Auction House, Dubbo. Replaced with plant and machinery that meet OH&S requirements. Work at Haddon Rig carried out by : Haddon Rig Staff - Fuel Tanks; Stands for Machinery; Robey & Hutchinson, (Engineering Works, Warren) - Pump works; Fuel Tanks Tom Saunders; (Licensed Builder) - Wool Shed Anthony Gemmell (Electrician) and Cliff Florida; Country Energy Electrician - Safety Switches; Re-Wiring; Smoke Detectors; Accommodation; Geoff Parsons (Tanks and Safety Ladders, Guards) Warren Auto Electrical - Provided Safety Switches and lights 63 The personal defendant has appointed Ms Nancye March as an external additional Safety Officer for the corporate defendant to work with its employees, effectively as an ongoing audit process to ensure that the corporate defendant continues to improve and develop its occupational health and safety systems and procedures. 64 The total expenditure to date by the corporate defendant on upgrading occupational health and safety is $125,000. Further, the corporate defendant has incurred additional costs in having a second person operate the auger. 65 The personal defendant attached the latest available financial accounts of the corporate defendant stating that the corporate defendant had made a loss in 2003 and 2004 and has budgeted for a loss in 2005 as they have no cotton planted and are in the grip of the worst drought in 100 years. The personal defendant stated that while a fine can be paid, it would be difficult to pay it within 28 days. The corporate defendant has qualified for assistance from the Government for the last two years as it is experiencing a one in a hundred year drought, under the exceptional circumstances rural assistance package. 66 A copy of the Occupational Health & Safety Manual for the corporate defendant as at March 2005 was tendered. Under the heading Augers the following appears: - You must have the appropriate accreditation to operate an auger. - Do not at any time remove the guards from an auger. - Never operate an auger that has had a guard removed. - Do not try to remove any objects from the auger flight when running. Switch off. - Do not wear loose clothing that could be caught in auger flight. - Do not travel the auger when it is full of grain. - Do not try to lift the auger when it is full of grain. - Only move augers at "idle" speed. - Only insert augers into specified chutes as instructed by your supervisor. - If suffering from allergies or asthma be aware that silo or grain dust can become very overpowering in a very short time. - ALWAYS WEAR MASKS WHEN SHOVELLING AUGERS OR SILOS. - Self-propelled augers to be moved by two people at all times. One person to drive, the other to assist in safe placement of auger. - Be aware of power lines at all times - look up to check proximity - electric shock danger. - If the auger does have any problems, or does not operate correctly, switch off and contact your supervisor. Do not continue until you have received proper instruction. 67 The personal defendant has advised farmers operating in the local district on the safe use of augers. 68 Mr Maclean's evidence can be summarised as follows: (a) The personal defendant has encouraged Mr Maclean to acquire formal qualifications, and allowed him time off from work in order to attend TAFE at Dubbo. Mr Maclean has obtained Certificate IV in Pastoral Production from Dubbo TAFE and completed a number of subjects in Certificate III Agriculture at Dubbo TAFE. (b) There is a culture of training and safety at the corporate defendant. Weekly meetings are held with the personal defendant and other senior managers and safety is a standing agenda item. (c) No jackeroo is allowed to use any item of equipment unless they have been formally trained in that equipment and certified by the overseer or manager as competent to use the equipment. Mr Maclean's evidence is that the corporate defendant is doing all it can in relation to occupational health and safety matters. (d) Evidence was given of the training and work that Mr Vial initially undertook with the corporate defendant. On 30 May 2002, Mr Maclean stated that he trained Mr Vial in the correct operation of the blue Liset auger. The following instructions were given: (i) Check over the motor, hoses and flight for leaks and damage before starting. (ii) Check oil, fuel and water levels before starting. (iii) Ensure tyres and rear jockey wheel are inflated before attempting to move the machine. (iv) Always ensure the wheels are disengaged once the machinery is stationery. (v) Always look up for power lines before attempting to raise any auger barrel. (vi) Never put hands or any body parts near the auger flight. (vii) Always operate the machine at low revs when manoeuvring around the hayshed complex and silos. (e) Mr Maclean also demonstrated the correct and safe insertion of augers into silo chutes stating that he told Mr Vial never to enter large silos alone due to the danger represented by possible asphyxiation due to dust or poisonous gas. Mr Vial was told that if a machine breaks down, he should cease to operate the machine and contact the supervisor. (f) On 10 June 2002, Mr Maclean trained Mr Vial on the operation of the Cambooya mix truck. This truck is used for mixing grain and hay and carting it to stock for feeding. Mr Vial spent the week of 10 June 2002 operating the Cambooya mix truck with Clifford Williams, an experienced jackeroo/station hand with 10 years agricultural experience. (g) Mr Maclean stated that Mr Vial spent three weeks in the period 18 June 2002 until 2 August 2002 working alone, using the Cambooya mix truck and the Liset and Holden augers. A further week was spent operating the augers and the Cambooya mix truck during the week of 16 September 2002. (h) Mr Maclean stated that on Monday 4 November 2002, Mr Vial was again allocated work which involved the feeding of stock with a mixture of grain and hay. This involved using the augers and the Cambooya mix truck for the week. Mr Maclean stated that he was at the site of silo 1 on 4 November 2002 and that the door to silo 1 was closed and barred. Mr Maclean assisted Mr Vial to operate a new grain auger through the chute of silo 1 on Monday 4 November 2002. It will be recalled the accident occurred on 6 November 2002. (i) Mr Maclean stated that the accident that claimed Mr Vial's life was completely unpredictable. In his career in the rural industry, he has never been on notice of the possibility of a crushing accident using an auger. Mr Maclean stated that he was not aware of any such accident occurring elsewhere, nor had he read any literature about the possibility of such an accident. (j) Mr Maclean referred to the affidavit of Inspector Templeton sworn 1 November 2004 and sought to clarify certain comments that he made to Inspector Templeton during the interview which took place with him on 19 September 2003. In light of the respective statements of facts relied on by the parties and the resolution of the disputed issues referred to earlier, it is unnecessary to deal further with the evidence given by Mr Maclean in this regard. 69 The defendants tendered testimonials from Sir Laurence Street AC, KCMG, QC; Mr NRF Wilson, Mayor of Warren Shire Council; Mr David Boyd, Chairman and CEO of Clyde Agriculture Limited and Mark and Fiona Pilley, Shearing Contractors, who have been engaged by the corporate defendant for the past 25 years. Submissions of the Parties 70 Mr R Reitano of counsel, who appeared for the prosecutor commenced his submissions by emphasising the objective seriousness of the offence. Counsel pointed to three factors: the obvious risk, the consequences of the detriment to safety and the remedial steps taken by the defendants as being important. 71 Mr Reitano submitted that the risk was foreseeable and obvious and contended that it was a reasonably serious offence. 72 Counsel contended that there was a need for specific deterrence relying on the evidence of the corporate defendant that some of the improvements recommended by the National Safety Council of Australia Ltd in December 2002 had not been completed at the time of the subsequent compliance survey carried out by the National Safety Council of Australia Ltd on 20 December 2004. 73 Mr Reitano acknowledged that a discount was available for the utilitarian value of the plea. In respect of foreseeability, Mr Reitano relied on Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIRComm 322 at [83] - [85]. 74 The prosecutor sought an order for costs and a moiety. In respect of the application for time to pay any penalty and costs, Mr Reitano submitted that there were two approaches available. Firstly, such an application should be made to the Industrial Registrar on or before the period of 28 days after the imposition of a fine. Secondly, counsel observed that Haylen J had determined that the Court could set a time in which any fine and costs were to be paid although counsel did not provide a reference to his Honour's judgment. 75 Mr Stanton's submissions can be summarised as follows: The defendants had entered a plea at the earliest opportunity. On the occasion that the plea was entered, all members of the corporate defendant's board were present in Court. Mr Stanton conceded that the failure was foreseeable accepting the principles in respect of foreseeability set out in Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 at [80]; Inspector Templeton v Pavese Citrus Pty Ltd at [88] - [89]; Inspector Frank Glass v BT Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245 and Inspector Chris Chadwick v B H MacLachlan (NSW) Pty Ltd [2004] NSWIRComm 331 at [39]. 76 Counsel pointed out that the corporate defendant had been in operation since 1916 and had no prior convictions. It had undertaken significant remedial steps to ensure ongoing health and safety at its property. This included embarking on a campaign in the local area to ensure other owners of rural properties were aware of their obligations under the OH&S Act. 77 Counsel submitted that relevant to this offence is s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, particularly the following sub-paragraphs: (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation …, (i) the offender has shown remorse …, (k) a plea of guilty by the offender …, … (m) assistance by the offender to law enforcement authorities … 78 In acknowledging that the maximum fine in respect of the corporate defendant was $550,000, Mr Stanton submitted that I should allow a discount of 25 percent for the plea of guilty, a further 10 percent for subjective matters and a further five percent for the positive steps taken in respect of rehabilitation. 79 In respect of the personal defendant, Mr Stanton made an application for the exercise of the discretion to not record a conviction in accordance with the provisions of s 10 of the Crimes (Sentencing Procedure) Act, submitting that a s 10 could be granted on a conditional basis. In respect of this application, counsel relied upon WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2005] NSWIRComm 101 at [62]; WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; Jane T Michilis Pty Ltd (formerly known as Michilis Pty Ltd) (ACN: 073 407 397) [2003] NSWIRComm 240 at [81] - [87] and WorkCover Authority of NSW (Inspector McColl) v Dowdon Contracting Pty Ltd & Ors [2003] NSWIRComm 477 at [36] - [55]. Consideration 80 The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77 - 81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Anor (No 2) (2000) 99 IR 163. The maximum penalty in this case is $550,000. 81 Matters that are relevant to the consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks; whether there were simple and straightforward steps available to remedy any failures on the part of the defendant, and the practical and potential consequences flowing from the commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at [71]-[80]. 82 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; Capral Aluminium; Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61. 83 In considering the nature and quality of this offence, the Full Bench of the Industrial Relations Commission in Court Session in Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 stated: ... The penalty must reflect the nature and quality of the particular offence; the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high. 84 The charge and the particulars of the charge establish the parameters in which the objective seriousness of the offence should be considered by the Court: Morrison v Powercoal (No 3) at [76]. 85 The particulars of the charge allege the defendants failed to adequately assess and manage risks associated with using augers to auger grain from silos at the farm; failed to provide and maintain a safe system of work for its employees who were required to operate augers at the farm; failed to provide such information, instruction and training in relation to the operation of augers and in relation to augering grain at the farm and failed to provide adequate supervision for its employees who were required to operate augers at the farm. 86 These are the particulars to which the defendants have pleaded guilty and while they represent a comprehensive failure in providing a safe system of work whilst operating augers, the reference to the accident involving Mr Vial is evidence of the seriousness of the risk and the seriousness of the injuries that might be suffered because of these numerous failures. 87 There are four significant matters which require consideration and determination in deciding the appropriate penalty for these offences for each of the defendants. The first issue is the degree of culpability for the breaches of occupational health and safety that can properly be attributed to the acts or omissions of the corporate defendant. It is necessary to deal with this issue in order to decide the gravity of the offences to which the corporate defendant has pleaded guilty. 88 The second issue is linked to the first and involves an assessment of the degree of culpability that can be attributed to the second or personal defendant, Mr Falkiner, arising out of relevant acts or omissions both on his own part and on the part of the company, at least to the extent to which the company's acts or omissions can be properly attributed to him. 89 I consider that, notwithstanding the deeming nature of s 26(1) of the OH&S Act in relation to a person such as the personal defendant, it does not follow from the fact that an individual is, in circumstances such as those here present, deemed to be guilty of the offences resulting from the guilt of the corporate defendant, that is, the degree of culpability is to be assessed necessarily at the same level as the culpability of the corporation. 90 The third and fourth issues are also related. They involve determination of relevant factual questions, or questions of fact and degree, relating to the subjective circumstances of the respective defendants and how any conclusion in that regard should be factored into the final assessment of the relevant penalty or penalties. 91 In dealing with the first of these questions, the failure here is essentially a failure to provide a system of work with appropriate instruction and supervision. 92 As Haylen J observed in Inspector Chris Chadwick v BH Maclachlan (NSW) Pty Ltd at [36]: It is undoubtedly true that working in remote areas of the Australian outback presents different issues for systems of occupational health and safety to those which might be found in a city factory or workplace. By its very nature, the work is likely to be undertaken at a considerable distance from available emergency services and often the work will be undertaken alone, although systems for remaining in contact with a homestead or a fellow worker are able to be used … 93 In this particular case, the corporate defendant had a documented system of safety and provided safety courses for its employees. The evidence in this case, which I accept, was that Mr Vial was given instructions, on 30 May 2002, in operating augers and moving procedures by Mr Maclean, an experienced employee and stud manager. This included a verbal risk assessment in respect of the auger and accessing silos through the side access chutes. Although a safety course was provided to all jackeroos on 8 and 9 May 2002, Mr Vial did not attend this course as he had undertaken a farm safety course at Tocal Agricultural College. 94 The offence here goes to the instruction, training and supervision of young persons working as jackeroos and performing tasks which had well known dangers. Such instruction and training should have included a specific direction not to access grain via the doors of a grain silo, particularly in circumstances where each silo had a minimum of four access chutes. Furthermore, warning and danger signs should have been placed on the doors of the silo and ideally the doors fitted with a padlock to preclude access. 95 I accept, on the evidence, that there was a motor bike within close proximity of silo 1, that should have been utilised, in accordance with the training given to Mr Vial to report that the grey auger had broken down and to seek assistance prior to proceeding with the operation. It is of course relevant to factor into the consideration of the relevant gravity of seriousness of the matter the fact that what happened in this case was contrary to the express instructions of the corporate defendant, given through the personal defendant. However, it must also be acknowledged that what those matters do not take into account is that many employees in rural industries learn their skills on the job and the practical exigencies that where a piece of equipment breaks down and a similar piece of equipment is available to carry out the task, the employee may proceed to ignore the direction to communicate to a supervisor the failure of the equipment and seek further instructions. 96 It is the lack of supervision in this regard that no doubt contributed to the accident. The corporate defendant has now included in its instructions in respect of the use of augers that self-propelled augers are to be moved by two people at all times, one person to drive, the other to assist in safe placement of the auger. The significance of the failures are to be seen in the perspective of the steps that have been taken since the accident which are referred to in the evidence of Mr Falkiner. 97 Seen in that context, it is to be considered that there was a major and significant breach of safety and that the gravity of the offence was correspondingly significant. 98 Having reached those conclusions in relation to the culpability of the corporate defendant, it is necessary to consider that of the personal defendant. In my view, a level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 26(1) of the OH&S Act cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purpose of the operation of the section. 99 However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering the relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation, although the relevant issue is not whether, but to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the OH&S Act. It is, nevertheless, necessary to accept the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant. 100 In assessing the culpability of the personal defendant, it is, in my view, important to place particular weight upon the role of the personal defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the corporate defendant, and to make an assessment which should, generally speaking, be resolved in favour of the personal defendant: Camilleri's Stockfeeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 - 699. Although the personal defendant was an important and crucial part of the management of the corporate defendant, nevertheless, he was a manager in the context of a small company which itself managed and ran a large mixed farming property. 101 The personal defendant was assisted in his role by highly experienced managers who had many years experience in the pastoral industry. It is therefore appropriate, to proceed on the basis that although the personal defendant had a significant role in the decision making as to the employment and running the corporate defendant, it could not be assumed that he could make all crucial decisions, or changes to practices. It may therefore be assumed, and thus found for the purposes of these proceedings, that the system now in place, as referred to in the personal defendant's evidence includes matters that had not come to the attention of the personal defendant despite his experience or the attention of the Farmers' Federation, its various branches and the New South Wales WorkCover Authority, particularly in respect of a crushing accident involving an auger. Such an accident would be most unlikely to occur in placing an auger into the silo chutes. Accordingly, I consider that there is a significant qualitative difference between the culpability attaching to the corporate and personal defendants, although I find that the gravity of all of the offences is serious. 102 The evidence establishes that at the time of the accident, the corporate defendant had developed a system for the assessment and management of risks, however the system was deficient. 103 I accept that the existence of the system evinces the defendants' concern in regard for safety and militates the seriousness of the offence. The defendants had a system in place, however, as evidenced by their pleas of guilty, there was a deficiency in the system. The failure or omission on the defendants' part, in my view, was not in the nature of the deliberate or intentional disregard for safety. 104 Evidence of procedures and instructions for employees and contractors to follow, may mitigate against the seriousness of the offence under the OH&S Act. In WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] (2000) 100 IR 23 at [34], Walton J Vice-President observed: On the other hand, the seriousness of the offence must be assessed in light of the policies and procedures which the defendant had in place. The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of an offence under the Act: see Warman International Ltd v WorkCover Authority (NSW) (1998) 80 IR 326 at 342; WorkCover Authority NSW (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 at 429 and Department of Mineral Resources (Insp. McKensey) v Kembla Coal (at 25). 105 The issue discussed by the Vice-President was confirmed as being an appropriate consideration to take into account by the Full Bench in Morrison v Powercoal (No 3) at [83]. I accept that the defendants had implemented, prior to the accident, an array of measures which were designed to protect its employees from injury whilst using augers. 106 The occurrence of the accident in this case indicates the procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of the system on paper alone is clearly not sufficient to comply with the obligations imposed by the OH&S Act. The employer is required to ensure that its "paper systems" are implemented and maintained in its daily operations: Sydney County Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214. 107 As Walton J Vice-President observed in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78 at [87]: [87] …the presence of young and inexperienced persons in the workforce gives rise to an increased responsibility on the part of an employer to ensure adequate training is provided, particularly as to matters concerning the occupational health and safety of those persons. 108 In respect of causation, the proper approach to the distinction between the ultimate event and the underlying risks has been the subject of comment in a number of cases. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8, Walton J stated at 27 - 28: The standard of foreseeability is objective, but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 364; The University of Sydney . In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s 15 of the Act, that (at p7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." 109 This passage is applicable in this case. Whilst the accident resulted from a combination of events, the breakdown of the grey auger, the opening of doors to the silo to auger grain with a larger auger, and the absence of safety buttons on the auger, the occurrence of an accident of this type was, in my view, reasonably foreseeable. The prospect of an employee opening the doors to the silo was foreseeable. It was against this very danger that a procedure was introduced that requires two persons to move an auger and a safety button installed on augers. 110 A further factor that should be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred. The seriousness of an injury or a death does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting; Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 111 In Morrison v Powercoal Pty Ltd (2003) 130 IR 364, the Full Bench Wright J President, Walton J Vice-President, Boland J stated at [33]: [33] Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case. 112 This is a matter, which in my view, could properly fall within the second example referred to by the Full Bench in the above decision. The corporate defendant had an impeccable safety record stretching back to 1916 and in my view could be regarded as a leader in the pastoral industry in respect of occupational health and safety. However, through a combination of inadvertence and inexperience, a fatality occurred. 113 It is now necessary to deal with the subjective circumstances of each of the defendants. A great deal of material has been placed before the Court relevant to these issues insofar as they concern each defendant. I accept that the defendants have a strong commitment to occupational health and safety and give such matters priority in the conduct of the operation of the property. 114 Section 21A(3) of the Crimes (Sentencing Procedure) Act provides some mitigating factors to be taken into account in determining the appropriate sentence. Relevant for the proceedings are the following sub paragraphs: (e) the offender does not have any record (or significant record) of previous convictions, (f) The offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, … (k) a plea of guilty by the offender (as provided by section 22), … (m) assistance by the offender to law enforcement authorities (as provided by section 23). 115 The corporate defendant has been in operation for over 90 years and has no prior convictions. I therefore find that the corporate defendant has a very good industrial citizenship which is an important matter to be taken into account on sentence: Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46, where the Full Bench, Wright J President, Walton J Vice-President and Hungerford J said at [16] - [17]: [16] ... Perhaps more significantly, there are quite significant subjective features in this matter which appear to have not been taken into account or sufficiently taken into account. [17] We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. 116 In addition, the Court has before it a number of testimonials from persons of prominent standing in the community. Sir Laurence Street AC, KCMG, QC commented of the personal defendant's "commitment to looking after the safety, security and general morale of his staff and I can well understand how utterly distressed he is that one of his jackeroos suffered a fatal injury". Mr NRF Wilson has been the Mayor of Warren for the past 18 years. Mr Wilson referred to the personal defendant and his wife as Ambassadors for regional and rural Australia. 117 In Inspector Olive v Transfield Pty Ltd [2001] NSWIRComm 295 at [23], Kavanagh J observed at [23]: [23] I find the court can give some positive consideration to the corporate reputation and personal reputation relied upon and find it has some probative force sufficient in my consideration to allow a measure of mitigation of penalty. 118 The corporate defendant has demonstrated a laudable attitude to issues of safety. This includes being one of the first rural properties to introduce a comprehensive occupational health and safety policy; engage the National Safety Council of Australia Ltd to undertake a major risk identification survey shortly after the accident; taking steps to bring to the attention of property owners in the Warren district of New South Wales the importance of occupational health and safety and appointing an additional safety officer to work with the corporate defendant in an ongoing audit role to ensure the corporate defendant continues to improve and develop its occupational health and safety systems and procedures. 119 The defendants are entitled to credit for the swift actions aimed at ensuring that an accident similar in nature did not occur in the future. Silo 1 was decommissioned shortly after the accident. In Tyler v Sydney Electricity, Hill J said at 5: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measures of gravity of the breach itself and the measure of culpability. These considerations are, of course, not exhaustive and, amongst other things, the record of the defendant and its conduct in relation to the taking of safety precautions both prior and subsequent to the breach are also very relevant. 120 The defendants further refined their existing occupational health and safety policy in respect of the use of augers. This included the installation of a safety button on those augers which did not have one. 121 The circumstances of this matter present a most difficult task for the Court in balancing all the relevant considerations. A most useful insight into the relevant considerations however derives from a passage in the judgment of the New Zealand Court of Appeal in R v Radich [1954] NZLR 86 at 87 which was cited with the approval of the Court of Criminal Appeal (Street CJ, Lee and Slattery JJ) in R v Rushby [1975] 1 NSWLR 594 at 598, as follows: "… If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main consideration that determine that appropriate amount of punishment." 122 Those judgments have been referred to with approval in previous judgments of this Court. See, for example, WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 335; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209; Inspector Lancaster v Wollongong City Council [2005] NSWIRComm 79; Inspector Ankucic v William George Young [2004] NSWIRComm 186. 123 I have formed the view that the offence is a sufficiently serious one to bring it between the low to mid range of the scale of culpability. I make clear that the objective seriousness of the offence is moderated by the fact that the defendants did have in place an elaborate set of systems designed to ensure the safety of its employees in their application to this case. However, the systems were not sufficiently clear and detailed, particularly in respect of the use of augers. The procedures which were in place were also not supported by a secondary layer of safety which has now been introduced, that includes self-propelled augers are to be moved by two people at all times. These failings exposed the corporate defendant's employees to risk of serious injury. 124 I approach the assessment of the appropriate penalty in these matters accordingly. In my view, the relevant principles lead immediately to a conclusion that although questions of general deterrence are pertinent here, considerations of individual deterrence should not be accorded great weight in the very particular circumstances of both defendants. 125 Here it is appropriate to act on a basis that the personal defendant is a person of the highest character, both in the rural community and generally, with a long and positive record in the pastoral industry which has endured for a long period of time without coming under adverse notice with the relevant authorities. This is particularly significant in the industry in which the defendants operate. Such matters are entitled to great weight and they are to be taken into account in favour of the corporate defendant to a similar extent. 126 Similarly, there is evidence of contrition and remorse. Co-operation has been provided by the defendants to WorkCover and pleas of guilty were entered at the earliest opportunity. Although a finding of guilt would have been most likely, significant weight has to be given to the public interest considerations of the fact of the early pleas. In making the above observations, I am mindful of the Full Bench's observations regarding specific deterrence in Capral Aluminium. The Full Bench observed at [77] that in view of the scope of the obligations by employers under the OH&S Act in most cases, it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. 127 General deterrence must be taken into account because, as identified by Hungerford J in Fisher v Samaras Industries Pty Ltd at 388, and approved by the Full Bench in Morrison v Powercoal (No 3) at [14], the offence is against the statute of public interest and public concern and it is important to compel attention to occupational health and safety issues. It is appropriate that I include independently an element for general deterrence. 128 In respect of specific deterrence, the Full Bench in Capral Aluminium stated at [77]: [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995). 129 In this matter, the defendants have undertaken an extensive and comprehensive review of their occupational health and safety policies. This review has resulted in the decommissioning of silo 1, the fitting of safety buttons to augers and an extensive review of occupational health and safety matters at the property. 130 I am satisfied that the risk of re-offending is extremely low as a result of the extensive and comprehensive measures taken by the defendants, together with a demonstrated commitment to safety. I therefore determine a very small element of the penalty should reflect specific deterrence. 131 The High Court recently considered the sentencing method that should be applied by courts in Markarian v R (2005) 215 ALR 213, [2005] HCA 25. The Court, (Gleeson CJ, Gummow, Hayne and Cullinan JJ in a joint judgment; McHugh and Kirby JJ in separate judgments) allowed an appeal, set aside the sentence and orders of the New South Wales Court of Criminal Appeal and remitted the matter to that Court to dispose of the appeal in accordance with the reasons for judgment. In the joint judgment at [26] - [27], their Honours said: [26] Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case. In sentencing for a federal offence, it must begin by considering Pt 1B of the Crimes Act . In the present case, it must begin with the provisions of the Sentencing Act . [27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. (Footnotes omitted). 132 Later, at [31], their Honours said: [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage. (Footnotes omitted). 133 The joint judgment then went on to consider Wong v The Queen (2001) 207 CLR 584 and R v Thompson; R v Houlton (2000) 49 NSWLR 383 and at [38] stated: [38] Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place , have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place [37] the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia. 134 McHugh J at [65] observed: [65] Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed. What Jordan CJ said in R v Geddes about the reality of the sentencing process has never been bettered and probably has never been equalled. With the passage of time, it is no longer cited as frequently as it once was. But the whole judgment repays careful study. I make no apology for setting out the crucial passage, lengthy though it is: "This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule . The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong." (emphasis added) 135 And later at [76] observed: [76] One reason why the idea of instinctive synthesis is apparently abhorrent to lawyers who value predictability and transparency in sentencing is that they see the instinct of a sentencing judge as entirely subjective, personal, arbitrary and unconfined. In fact, although a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance. 136 Kirby J at [122] observed: [122] Specifically, in many decisions, the intermediate courts saw nothing wrong (and much that was advantageous) in the explicit identification of the precise discount to be allowed, in particular cases, for pleas of guilty and for assistance to the authorities. They therefore did what was sensible in the circumstances. They adhered, in fact, to the two-stage approach in those and other instances of sentencing. However, they accepted that this was not a universal approach of sentencing but one specific to the ad hoc instances where it was appropriate or at least permissible. The formula "two-stage approach" was sometimes replaced by descriptions such as "sequential process". The judges occasionally confessed (as Hulme J did in this case) that they found it "difficult to understand" how the "instinctive synthesis" approach could be applied, or how it could result in a "single appropriate sentence" unless an hypothesised starting point were taken "against which the factors of assistance and of the plea could be considered". For the specification of particular discounts (and hence the necessity of a kind of two-stage approach) a unanimous Court of Criminal Appeal of South Australia in R v Place clearly remained unconvinced by the approach demanded in Young . Indeed, it was dismissive of the favour it had, by that time, gathered in this Court, then still short of a majority. In Place , the South Australian Court of Criminal Appeal said: "For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty." 137 Later, at [132]: [132] Semantics and substance : I have previously suggested that some of the debates over the two-stage approach and instinctive or intuitive synthesis may be semantic, not substantive. That remains my view. To this extent, I agree with what is said in that part of the joint reasons. But a sticking point remains, for I cannot accept a Williscroft "instinct" or a Young prohibition on two-stage reasoning as sentencing principles, where a more transparent course is available, appropriate and more conformable with modern legal principles governing the deployment of public power. To say the least, there have been important developments in the subjection of uncontrolled discretions to judicial analysis since R v Geddes was written. Fundamentally, such developments derive from a principle that lies at the heart of the Australian Constitution and its system of democratic and accountable government. Intuitive and instinctive power is not now in favour. The rule of law stands in its place (footnotes omitted). 138 The starting point therefore in respect of this sentencing is a consideration of the Crimes (Sentencing Procedure) Act. Part 3 - Sentencing Procedures Generally, contains the following provisions: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 139 Section 22, s 23 and s 24 of the Crimes (Sentencing Procedure) Act provides that a guilty plea is to be taken into account, a reduced penalty may be imposed for assistance to law enforcement authorities and the Court may take other matters into account. These sections are in these terms: 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims, (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) the likelihood that the offender will commit further offences after release. (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. 24 Court to take other matters into account In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence, and (b) in the case of an offender who is being sentenced as a result of failing to comply with the offender's obligations under a community service order, good behaviour bond or intervention program order: (i) the fact that the person has been the subject of such an order or bond, and (ii) anything done by the offender in compliance with the offender's obligations under the order or bond, and (c) in the case of an offender who is being sentenced as a result of deciding not to participate in, or to continue to participate in, an intervention program or intervention plan under an intervention program order or good behaviour bond, anything done by the offender in compliance with the offender's obligations under the intervention program order or good behaviour bond, and (d) in the case of an offender who is being sentenced following an order under section 11 (1) (b2): (i) anything done by the offender in compliance with the offender's obligations under the order, and (ii) any recommendations arising out of the offender's participation in the intervention program or intervention plan. 140 Section 27 sets out to which jurisdiction the Division applies. It provides: 27 Application of Division (1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court or a Local Court, and only as provided by this section. (2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment and is: (a) an offence that results in the death of, or actual physical bodily harm to, any person, or (b) an offence that involves an act of actual or threatened violence or an act of sexual assault, or (c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result. (2A) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if: (a) the offence is an offence against Division 1 of Part 2 of the Occupational Health and Safety Act 2000 , and (b) the offence results in the death of, or actual physical bodily harm to, any person. (3) In relation to an offence that is being dealt with by a Local Court, this Division applies only if the offence is: (a) an offence that results in the death of any person, or (b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or (c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that: (i) results in actual physical bodily harm to any person, or (ii) involves an act of actual or threatened violence or an act of sexual assault. (4) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply. 141 Section 36, which is found in Division 4 - Sentencing Guidelines defines "guideline judgment" as meaning a judgment that is expressed to contain guidelines to be taken into account by court sentencing offenders being: (a) Guidelines that apply generally, or (b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders). 142 Section 42A provides as follows: 42A Relationship of guidelines and other sentencing matters A guideline that is expressed to be contained in a guideline judgment: (a) is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and (b) does not limit or derogate from any such requirement. 143 R v Sharma (2002) 54 NSWLR 300 is a guideline judgment of the New South Wales Court of Criminal Appeal and as such, must in my view, be taken into account pursuant to s 42A of the Crimes (Sentencing Procedure) Act. In Sharma, Spigelman CJ at [22] observed: [22] The crown raised the question as to whether or not this Court's guidance in R v Thomson remained appropriate, in view of the High Court's decisions in Wong v The Queen 76 ALJR 79; 185 ALR 233 and Cameron v The Queen 76 ALJR 382; 187 ALR 65. 144 At [27] - [30] the Chief Justice then considered the High Court's reasoning in Wong and the Supreme Court of South Australia's decision in R v Place (2002) 81 SASR 395, (2002) 189 ALR 431. 145 The Chief Justice referred to the appropriateness of a percentage discount relevantly, for a plea of guilty, as was determined in R v Thomson; R v Houlton. His Honour observed that the Supreme Court of South Australia had also adopted the practice of encouraging sentencing judges to quantify the discount given for a plea of guilty, noting that after the High Court's decision in Wong the Full Court of the Supreme Court of South Australia considered the implications of that judgment in R v Powell (2001) 81 SASR 9. It concluded by a majority of 2 to 1 that the previous practice could continue, notwithstanding the criticism of the "two stage approach" to sentencing in the joint judgment in Wong. The Chief Justice went on to observe that the matter was of such significant practical importance for the Supreme Court of South Australia to convene a five Member Bench in R v Place where the Court unanimously came to the same conclusion. 146 The Chief Justice set out the reasons of the South Australian Supreme Court in R v Place, which noted the compelling reasons in public policy why the extent of the reduction in sentencing in recognition of a plea of guilty should be identified; that the current practice should continue; sentencing courts should be encouraged to identify the specific reduction given in respect of a plea of guilty; that in determining the extent of a reduction in sentence, the current practice of taking into account the timing of the plea, contrition, co-operations with and assistance to the authorities should continue and that their Honours emphasised that when taking into account any subjective considerations, sentencing courts should not ignore those subject considerations to the extent that they are relevant to other aspects of the sentencing task. 147 At [31] the Chief Justice observed as follows: [31] For similar reasons, in my opinion, the practice in this State, which has developed over a considerable period, culminating in the guideline judgment in R v Thomson should also continue. 148 His Honour also referred to the judgment of the High Court in Cameron v R (2002) 209 CLR 399; (2002) 76 ALJR 382; 187 ALR 65 observing at [36]: [36] If the reasoning in Cameron is applicable in this State, then the foundation of the judgment in R v Thomson is swept away… 149 His Honour went on to state at [38] - [39]: [38] The joint judgment in Cameron was concerned with general sentencing principles. It did so in the context of a West Australian statute. Those sentencing principles would be applicable in New South Wales, unless they have been modified by statute. If they had been so modified, then the different reasoning of Kirby J in Cameron (at 393 [65] - [68]; 79 [65] - [68]) would be pertinent for the practice in this State. This Court must determine whether there has been such a modification. In R v Place the five judge bench of the South Australian Court of Criminal Appeal suggested, (at [64]-[79]), without needing to finally decide the question, that Cameron did not apply under the legislation of that State. [39] In 1990 the New South Wales Parliament introduced s 439 of the Crimes Act . The section has now been re-enacted, in substantially the same form, as s 22 of the Crimes (Sentencing Procedure) Act 1999 which provides: "22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed. … 150 Later at [50] the Chief Justice observed: [50] The Crimes (Sentencing Procedure) Act states that a court "must", not "may", take into account a plea. Furthermore, what is required to be taken into account is both "the fact" of the plea and "when" it was made. If a lesser penalty is not to be imposed then the court must give reasons. 151 And later at [67] - [68]: [67] I do not understand the joint judgment in Cameron to have called into question the ability of a State Parliament to adopt a form of differentiation which may be, or at least may appear to be, discriminatory in the sense that word was used in the joint judgment. Insofar as that is the consequence of accepting that s 22 of the Crimes (Sentencing Procedure) Act empowers the courts of this State to give significant weight to the objective utilitarian value of a plea of guilty, then that consequence must be accepted if that is what the New South Wales Parliament has done. In my opinion, that is the case. [68] …In my opinion the reasoning in the joint judgment in Cameron does not apply in this State. R v Thomson should still be followed. 152 Mason P, Barr, Bell and McClellan JJ agreed with Spigelman CJ. 153 The majority in Markarian stated that the task of sentencing must begin with a consideration of the applicable legislation at [26] - [27]. In this case, that is the Crimes (Sentencing Procedure) Act. 154 In Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266, Boland J considered the High Court's decision in Markarian, the New South Wales Court of Criminal Appeal decision in R v Sharma and this Court's decision in Lawrenson Diecasting and stated at [37] - [40]: [37] It is difficult to avoid the conclusion that the approach dictated by Lawrenson Diecasting is a two-stage approach to sentencing; the objective seriousness of the offence being the primary factor to be looked at in relation to penalty and subjective factors playing only a subsidiary role. That is, in determining sentence, subjective factors will not carry as much weight as objective factors. [38] However, nothing in Markarian would suggest that the general principle that a sentence must be "proportionate to the gravity of the crime considered in the light of its objective circumstances" ( Hoare v The Queen (1989) 167 CLR 348 at 354) has been overturned. This is the principle, I believe, upon which Lawrenson Diecasting is based. Moreover, I note what Spigelman CJ stated in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69: However, in this State the principle of proportionality identified in Veen v The Queen (1978-1979 143 CLR 458 esp at 490; Veen v The Queen [No. 2] (1987-1988) 164 CLR 465 esp at 472-3, 476 has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. [39] In the absence, however, of any clear indication in Markarian that a sentencing court may not use a two-stage approach to sentencing and may not give separate consideration to the objective circumstances of the crime (in fact at [38] in the joint judgment it appears to be said that this may be justified) and given that the implications of Markarian for the approach required by Lawrenson Diecasting were not fully debated before me, especially as to the statutory context in which sentencing occurs in this jurisdiction, I am disinclined to depart from the approach required by Lawrenson Diecasting . [40] The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting . Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act . I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors. 155 Schmidt J in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271, after considering Markarian said at [29] - [31]: [29] Account must be taken of the High Court's approach in Markarian, although, as Boland J observed in Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd [2005] NSWIRComm 222, the decision in R v Thomson, R v Houlton (2000) 49 NSWLR 383, is a guideline judgment of which account must be taken in accordance with s42A of the Crimes (Sentencing) Procedure Act 1999. (See State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at [45].) [30] In this case, I take the view that it is appropriate to indicate that in respect of the utilitarian savings achieved from the entry of the early plea, I approached the determination of penalty by applying a discount of 25% for that factor, to the penalty which I had otherwise determined appropriate having regard to all of the other matters I have dealt with, including matters of aggravation and mitigation. I am satisfied that justice is best served by making this approach clear, given the interests of victims, the parties, appeal courts and the public, in an understanding of how penalties in proceedings such as this are determined, when early pleas of guilty are entered. In my view, this is of significant public interest in the administration of justice in prosecutions brought under the Act. [31] I also observe that Boland J took a similar approach in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 and Kavanagh J in Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192. 156 I respectfully agree with their Honours. I turn to consider the factors to be taken into account in determining the sentence to be imposed on each of the defendants. 157 The defendants entered pleas at the earliest opportunity and are therefore entitled to the full discount of 25 percent for the utilitarian benefits of their plea: R v Thomson; R v Houlton. In this regard, I note the Court of Appeal (Spigelman CJ; Grove and Bell JJ agreeing) in R v Lawrence [2005] NSWCCA 91, observed that the guideline established in R v Thomson; R v Houlton does not require the sentencing judge to quantify any discount. It does, however, indicate that judges should explicitly state that the plea of guilty has been taken into account and that "failure to do so will generally be taken to indicate that the plea was not given weight". 158 Having regard to the summonses in IRC 6501 of 2004, the particulars of the offence, the statement of facts and the evidence tendered in these proceedings, I am satisfied that the offence has been proven and that the plea of guilty has been properly made by the corporate defendant. A verdict should therefore be entered against the corporate defendant. The corporate defendant has demonstrated an impressive safety record and conscientious approach to the safety at the workplace. However, the penalties imposed in these proceedings must reflect the objective seriousness of the offences committed, including the serious nature of the offences, evidenced by the tragic, unnecessary death of the deceased young man, Mr Vial, and the related risks to safety of other persons on the property. 159 In the circumstances, having due regard to each of the matters considered in the above reasons including the subjective and other mitigating factors earlier referred to, and that the maximum fine for the corporate defendant is $550,000, I consider that the offence in relation to the corporate defendant should result in a conviction of the corporate defendant and the penalty that should be imposed, is a fine of $78,000. 160 Counsel for the personal defendant, submitted that the circumstances of the offence was such that I should properly apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act on a conditional basis. Section 10 of that Act relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 161 The application of the provisions of s 10 to an offence arising under the OH&S Act and its predecessor has been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. The Full Bench, Wright J President, Walton J Vice-President, Hungerford J referred to the comments of Wright J in WorkCover Authority (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 where his Honour noted the limited utility of comparing cases where provisions of the then 556A (the statutory predecessor to s 10 of the Crimes (Sentencing Procedure) Act) had been applied. His Honour stated: … In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s 556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here.) 162 In Profab the Full Bench said at [21]: [21] The judgment of the Full Court ( Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the propositions that the discretion under s 556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 163 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s 556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s 556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to "any other matter which the court considers it proper to consider". [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 478: "The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 - 273 per Mahoney JA and at 280 - 281 per McHugh JA and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182 - 183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority of New South Wales (1998) 83 IR 338 at 340." [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 164 Mr Stanton took the Court to the decision of Staunton J in WorkCover Authority of New South Wales (Inspector Dall) v Litchfield Roofing Pty Ltd; Joseph Andrew Litchfield; J & T Michilis Pty Ltd (formerly known as Michilis Pty Ltd). In that matter her Honour considered the Full Bench's observations in Profab and decisions of Members of this Court where the provisions of s 10 of the Crimes (Sentencing Procedure) Act had been considered. However, as Wright J President said in WorkCover Authority of New South Wales v Ecolab, in any consideration to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act, each matter has to be considered in relation to its own particular circumstances. 165 Mr Stanton also referred to two further decisions of Staunton J in WorkCover v Daly Smith and WorkCover v Dowden. In the former case, her Honour rejected the s 10 application. In the latter case of Dowden her Honour granted the application. 166 In this matter, the personal defendant is the Managing Director of the corporate defendant, and its safety officer. The personal defendant has extensive experience in mixed farming and supervises the livestock and farming managers. Although there has been placed before me material from prominent Australians attesting to the character of Mr Falkiner, both in relation to his approach as Managing Director of the first respondent and his role in the community which, as attested to, is extensive and constructive, this Court has stated on many occasions that s 10 would be available in rare or limited circumstances in relation to strict liability offences under the OH&S Act. 167 The Court has recognised that there are sometimes circumstances in strict liability offences where there is, practicably, little that could have been done by the defendant to address the risk. In my view, this is not such a case. The offence cannot be regarded as trivial and it was not suggested by the defendant that it was, and there are no extenuating circumstances identified, or other matters which would lead to the discretion being exercised in favour of the personal defendant. The consideration of the personal defendant's laudatory record over a long period of time is more appropriately dealt with as a relevant consideration in assessing the subjective features relating to this offence. In the circumstances, the application under s 10 of the Crimes (Sentencing Procedure) Act is declined. 168 In relation to the offence involving the personal defendant, allowing the full discount of 25 percent for the utilitarian value of the plea and having due regard to the subjective and other mitigating factors earlier referred to, and that the maximum fine for the personal defendant is $55,000, I consider that he should be convicted of the offence, and the penalty that should be imposed is $6,500. 169 The penalties to be imposed would have been significantly greater had it not been for the subjective factors I have mentioned, particularly the plea of guilty, the defendants' demonstrated contrition, good record of industrial citizenship and outstanding character. The prosecution should have a moiety of the fine. 170 Mr Stanton made an application that the Court allow time to pay any fine imposed. Section 4 of the Fines Act 1996 defines the meaning of the "fine". Section 4(1)(a) provides as follows: 4 Meaning of "fine" (1) For the purposes of this Act, a "fine" is: (a) any monetary penalty imposed by a court for an offence, or … 171 Section 3 of the Fines Act defines a court to mean the Supreme Court, the Industrial Relations Commission, the Land and Environment Court, the District Court, a Local Court, the Children's Court or any other court. 172 Section 5 of the Fines Act sets out a summary of the procedure for the payment of court fines as follows: 5 Summary of procedure for payment of court fines (1) The following is a summary of the procedure under this Part for the payment of fines imposed by any court: (a) A fine imposed by a court is payable within 28 days after it is imposed. (b) The person on whom the fine is imposed is to be notified of the fine, the arrangements for payment and the action that may be taken under this Act to enforce the fine. (c) A court registrar may allow further time to pay the fine on the application of the person. (d) If payment of the fine is not made by the due date, a court fine enforcement order may be made against the person. If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by this Act may be taken (see Part 4). (e) A court fine enforcement order may be withdrawn if an error has been made. (2) This section does not affect the provisions of this Part that it summarises. 173 In my view, I do not have the power and therefore any discretion in respect of how a fine may be paid. Any application in respect of the payment of a fine over a period of time greater than 28 days from the date upon which the fine is imposed by the Court is a matter for the Court Registrar or his delegate. ORDERS The Court makes the following orders: As to matter No IRC 6501 of 2004: 1. The offence is proven and a verdict of guilty is entered in this matter. 2. The corporate defendant is convicted of an offence under s 8(1) of the OH&S Act 2000. 3. The corporate defendant is fined the sum of $78,000 with a moiety of that fine to the prosecutor. 4. The corporate defendant shall pay the prosecutor's costs of these proceedings in a sum, as agreed, or, as assessed. As to matter No IRC 6502 of 2004: 1. The offence is proven and a verdict of guilty is entered in this matter. 2. The personal defendant is convicted of the offence, as charged. 3. The personal defendant is fined the sum of $6,500 with a moiety of that fine to the prosecutor. 4. The personal defendant shall pay the prosecutor's costs of these proceedings in the sum, as agreed, or, as assessed. 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.