Industrial Court of New South Wales CITATION: Inspector Martin v Abigroup Contractors Pty Ltd [2009] NSWIRComm 110 PROSECUTOR Inspector Brett Martin PARTIES: DEFENDANT Abigroup Contractors Pty Ltd FILE NUMBER(S): IRC 1912 of 2008 CORAM: Staff J CATCHWORDS: Occupational health and safety - Road construction industry - Concrete placer-spreader machine contact with tailgate of tipper truck - Driver of tipper truck sustained fatal crush injuries - Obvious risk to safety - Aggravating factors - Mitigating factors - General deterrence - Specific deterrence - Subjective considerations - Previous convictions - Guilty plea - Penalty imposed - Costs LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Higgins v Avoca Estate Agency Pty [1999] NSWIRComm 559 CASES CITED: Inspector Mayell v Bilfinger Berger Services - Roads Pty Limited (formerly known as Abi Road Maintenance Pty Limited) and Another [2009] NSWIRComm 10 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465 HEARING DATES: 11 June 2009 DATE OF JUDGMENT: 10 July 2009 PROSECUTOR Ms P McDonald of counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr BD Hodgkinson SC Deacons Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Friday, 10 July 2009 Matter No IRC 1912 of 2008 INSPECTOR BRETT MARTIN v ABIGROUP CONTRACTORS PTY LTD Prosecution under s 8(2) of the Occupational Health & Safety Act 2000 JUDGMENT [2009] NSWIRComm 110 1 Abigroup Contractors Pty Ltd ("Abigroup") has pleaded guilty to a charge and particular (a) to that charge brought by Brett Martin, an inspector of the WorkCover Authority of New South Wales ("WorkCover") under s 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The offence arose out of an incident which occurred on 10 October 2006 at a construction site at the Albury Wodonga Hume Freeway. On that day, Mr Mark Edgcumbe, a tipper truck driver employed by BKM Contracting Pty Ltd ("BKM"), who were contractors to Abigroup, sustained fatal crush injuries when he was crushed between the tailgate and tipper tray of his truck and a concrete placer-spreader machine which came into contact with the tailgate of his truck. 3 Abigroup was charged under s 8(2) of the Act in failing to ensure that persons not in its employment, and in particular, Mr Edgcumbe, were not exposed to risks to their health and safety arising from the conduct of their undertaking located upon the Albury Wodonga Freeway, near survey point 172327 Albury in the State of New South Wales ("the site"). The particulars to the application for order were: (a) The defendant failed to provide and/or maintain a safe system of work with respect to mobile plant and vehicular movements at the site. (b) The defendant failed to ensure that the operation of the Concrete Placer-Spreader Machine (the Spreader machine) was safe and without risk to health. (c) The defendant failed to ensure that a Spotter/Observer was present in the vicinity of the spreader machine at all times whilst the Spreader machine was in operation. (d) The defendant failed to provide a designated wash down area for tipper trucks following delivery of concrete at the site. (e) The defendant failed to provide any, or any adequate, vehicle movement procedures for the movement of mobile plant and vehicles at the site. (f) The defendant failed to conduct an adequate risk assessment in relation to the movement of mobile plant and vehicles at the site. (g) The defendant failed to ensure the provision of such information, instruction, training and supervision to its employees and other workers on site as was necessary to ensure health and safety to non-employees. (h) As a result of these failures, Mr Mark Edgcumbe was placed at risk of injury and was fatally injured. 4 Ms P McDonald of counsel, who appeared for the prosecutor, tendered the following evidence in the sentencing proceedings: (a) an agreed statement of facts; (b) a factual inspection report of Inspector Brett Martin dated 20 October 2006; (c) 27 photographs taken on 10 and 11 October 2006, depicting the scene of the incident, the tipper truck, the concrete spreader, views of the main control station of the spreader machine and the flat belt conveyor of the concrete spreader; (d) Abigroup's safe work method statement and BKM's safe work method statement; (e) a prohibition notice issued by Inspector Neville Burt to Abigroup dated 11 October 2006; (f) a WorkCover certificate of prior convictions showing 11 prior convictions. 5 The agreed statement of facts, excluding formal parts stated: ... 4. The defendant was the principal contractor and had control of the project site ("the worksite"). 5. The defendant was an employer. 6. The defendant contracted a fleet of trucks and drivers to deliver concrete for the Hume Freeway Project. 7. The defendant contracted Barry James and Kathleen Anna Mair, trading as BKM Contracting Pty Ltd [ACN 072 938 259] (BKM), to assist in the construction of the Hume Freeway Project. 8. BKM supplied the defendant with a tipper truck and an operator, namely Mr Mark Edgcumbe, for concrete cartage and earthworks. 9. BKM employed Mr Mark Edgcumbe as a tipper and concrete agitator truck driver. On or about 17 March 2006 Mr Edgcumbe commenced working at the worksite. He was the only employee of BKM who was contracted to work on the Hume Freeway Project. 10. Mr Edgcumbe's duties involved the delivery of concrete from the mobile concrete batch plant to the slipform paver. Plea of Guilty 11. The defendant entered a plea of guilty to the charge under section 8(2) of the Occupational Health & Safety Act 2000, at the first mention of the matter on 19 December 2008. The defendant admitted the conduct alleged in particular (a) to the charge. The Work Performed The Paving Operations 12. In order to receive, place and spread the concrete pavement for the Hume Freeway Project, the defendant utilised a large machine known as a Concrete Placer-Spreader ("Spreader machine") (Plant No. 22030, Serial No. 542137). The function of the Spreader machine was to place, spread and smooth out the concrete forming the new road pavement. 13. The Spreader machine utilised by the defendant was a Terex four track concrete placer-spreader, Model CMI PS-6004, with overall dimensions of approximately 13 metres long, 10 metres wide, 2.6 metres high and 45 tonnes in weight. 14. Attached to the side of the Spreader machine was a large conveyer belt that transported concrete mix into the auger system of the machine for laying. The conveyer belt could be extended or retracted by the operator of the Spreader machine. 15. The concrete was delivered to the Spreader machine by tipper-trucks, which placed their load of concrete mix onto the conveyor belt. The concrete was then carried across the Spreader machine before being laid onto the Freeway. 16. After the Spreader had laid the concrete, a paving machine following the Spreader machine would then compact and put the final shape and finish on the concrete pavement. The Paving Crew 17. The paving operations at the site were performed by a crew which included the following persons: a. Stephen Huxley, who was employed by the defendant as a labourer and spreader machine operator; b. Stephen Gabler, who was employed by the defendant as a trowl hand (concrete finisher) and spotter; c. David Taylor, who was employed by Telum Pty Ltd as a casual labourer; d. Brett Harrison, who was employed by the defendant as a paving leading hand; e. Wayne Nichols, who was employed by the defendant as a paving machine operator; and f. Chris Bugden who was employed by the defendant as the paving foreman. Events of 10 October 2006 18. At approximately 6.00 am on 10 October 2006, the defendant's paving crew commenced work for the day. The paving crew's duties on 10 October 2006 involved laying concrete on the southbound lanes of the Hume Freeway Project, between Corry's Road and Fallon Street, North Albury, near survey point 172327. 19. Mr Edgcumbe reported for work on day shift. He was part of a fleet of sub-contracted trucks delivering concrete to the Spreader machine in this section of the Hume Freeway Project. 20. At all material times the defendant had control of Mr Edgcumbe's activities whilst on the worksite. 21. On 10 October 2006, Mr Stephen Huxley was operating the Spreader Machine, Mr Wayne Nichols, was operating the paving machine and Mr Brett Harrison, was responsible for supervising the paving crew and paving operations. The spotter's duties were carried out by Mr Steven Gabler. 22. At approximately 2.00 pm Mr Harrison asked Mr Gabler to train Mr Taylor in the "spotting role". Prior to this date, Mr Taylor had never carried out the duties of a spotter. 23. For the duration of the afternoon Mr Taylor observed Mr Gabler performing the spotter's duties. 24. At approximately 4.45pm Mr Harrison received notification from the concrete batch plant that the last truck of the day was on its way. In readiness to clean the Spreader machine, Mr Harrison, directed Mr Gabler to commence laying tarpaulins in an area south of the Spreader machine. As Mr Gabler was laying the tarpaulins he says that he "looked up and kept an eye on the spreader." In Mr Gabler's absence, Mr Taylor was instructed by Mr Harrison to perform the spotting of the last truck under his supervision. The Incident involving Mr Edgcumbe 25. At approximately 5.00 pm Mr Edgcumbe delivered the last load of concrete for the day and dumped it onto the Spreader machine's conveyer. The Spreader machine was located near survey point 17372, adjacent to the old Union Road railway bridge at Lavington. 26. After dumping his load of concrete, Mr Edgcumbe lowered his tipper-tray and proceeded to drive his vehicle some distance in a southerly direction between the north and southbound lanes of the freeway under construction. Whilst the exact distance Mr Edgcumbe drove his vehicle away is unknown, it was estimated by Brett Harrison to be between 30 to 50 metres from the Spreader machine and estimated by Wayne Nichols to be 50 metres from the Spreader machine. 27. Mr Edgcumbe then alighted from his truck and attended to a task at the rear of his truck, namely cleaning the remnants of concrete from the tray and/or locking lugs of the tailgate. In order to perform this task, Mr Edgcumbe situated himself between the tipper tray and tailgate of his truck. The tipper tray was in an elevated position and the tailgate was open to a near vertical position in line with the ground. 28. Mr Taylor completed his paperwork for the last load and returned it to Mr Harrison. Mr Taylor then resumed his normal duties of shovelling concrete behind the paving machine, which was in the process of finishing the final section of road pavement for the day. 29. Mr Harrison also proceeded to the paving machine, thus leaving the spotter zone vacant. 30. In order to clean concrete waste from the Spreader machine, Mr Huxley was moving the Spreader machine in a southerly direction to a wash down area. The wash down area was approximately 20 metres further south from the location in which Mr Edgcumbe had parked his vehicle. 31. The Spreader machine was travelling in automatic mode at a speed equivalent to a walking pace (approximately 50 metres/minute). The Spreader machine and the paving machine move at a speed of around 1.5 metres/minute when continuously operating. 32. Mr Huxley was standing on the walkway on top of the Spreader machine, approximately 2 metres from the main control panel. He was looking over the eastern or left hand side of the Spreader machine at the steering tracks of the Spreader machine. The steering tracks are the front and rear steering mechanisms of the Spreader machine. 33. From this position, Mr Huxley's view was obscured. Mr Huxley was not aware that the Spreader machine was approaching Mr Edgcumbe's vehicle. 34. At the time of travelling the machine, Mr Huxley had not retracted the conveyer inside the perimeter of the Spreader machine. Rather it extended approximately 3.5 metres from the western or right hand side of the Spreader machine. 35. As the Spreader machine approached Mr Edgcumbe's vehicle, the corner of the conveyer, namely the conveyor end plate, came into contact with the tailgate of Mr Edgcumbe's truck. This resulted in Mr Edgcumbe becoming crushed between the tailgate and the tipper tray of his truck. 36. First aid was administered to Mr Edgcumbe at the worksite. He was subsequently transported by ambulance to Albury Base Hospital where he was treated for serious crush injuries to his upper legs and abdomen. Mr Edgcumbe was however pronounced dead approximately two hours later. Investigation of the Incident 37. On 10 October 2006 and 11 October 2006, Inspector Brett Martin attended the site and made observations contained in a Factual Inspection Report dated 20 October 2006. Annexed hereto and marked with the letter " A " is a copy of the Factual Inspection Report. 38. During the course of his inspections at the site, Inspector Martin took a number of photographs. Annexed hereto and marked with the letter "B" is a copy of the photographs. System of Work Prior to the Incident 39. The defendant had an OHS management plan in place for the Hume Freeway Project. As part of this plan, the defendant had completed a safety risk assessment in relation to the paving operations (with spreader) and tipper-truck concrete delivery, which were to be performed at the worksite. 40. Prior to the commencement of construction, the defendant documented a safe work method statement (SWMS) for paving operations at the site entitled "Work Process: Paving crcp Base using Spreader". BKM also prepared and documented a SWMS for tipper-truck concrete delivery entitled "Work Process: Tipper Truck Concrete Delivery". Annexed hereto and marked with the letter "C" are copies of the SWMS for paving operations and the SWMS for tipper truck concrete delivery. 41. The sub-contractors, including Mr Edgcumbe, operated under the defendant's SWMS and Mr Edgcumbe also operated under BKM's SWMS. 42. During the risk assessment process, the defendant did not however identify and/or adequately control a number of risks including: i. the additional speed of the Spreader machine when travelling to its wash down area after the last delivery of concrete for the day; and ii. the design and implementation of safe working distances from the Spreader machine when travelling to the wash down area at the end of the day; and; iii. the identification of an area to park the truck to close the tailgate and clean and remove loose material from the vehicle before returning to the batch plant. 43. The WorkCover Code of Practice, entitled "Moving Plant on Construction Sites", applies to the use of moving plant at all construction site places of work in NSW and provides practical guidance to prevent injury to people where moving plant is utilised. Chapter 3, Part 2 of the Code of Practice states in part: "The use of specific measures to eliminate or control identified risks should be done on the basis of the risk assessment. In particular, consider the following: · isolating vehicles and plant used in or around the site and work area from persons on the site or work area. For example, vehicles or persons may be guided around or past the work area; … · planning the direction that plant moves, so the visibility of operators is not restricted; · using spotters/safety observers to control traffic movement" … · implementing safe working distances". Spreader Machine Operation 44. The defendant's SWMS pertaining to paving operations, and in particular, the Spreader machine operation, did not provide a safe system of travelling the Spreader machine, whereby the conveyer of the Spreader machine was fully retracted inside the perimeter of the Spreader machine at all times whilst it was travelling. 45. At the time of the incident, the conveyer of the Spreader machine was extended approximately 3.5 metres from the side of the machine. After the incident, the Spreader machine operator was unable to state what the normal position of the conveyor should have been whilst travelling the machine. 46. As such, the defendant did not ensure that the operation of the Spreader machine was safe and without risk to health. The Presence of a Spotter 47. The system of work in place during the paving operations required a person to act as a spotter when the Spreader machine was operating in the vicinity of tipper-trucks and persons. 48. The defendant's SWMS did not identify the need for a spotter to accompany the Spreader machine when travelling to its wash down area; nor did it highlight the risk associated with the spotter zone being vacant when travelling the Spreader machine at any time. 49. Part 3.3.3 of The WorkCover Code of Practice provides: "When plant is operated in the vicinity of other plant or people, a competent person should be used as a spotter. The operator should observe the following procedures: · Avoid hazards by facing and maintaining attention in the direction of travel · Spotter should always be in the sight of the plant operator · Clear communication systems should be in place". 50. The spotter's role was to guide the tipper-trucks towards the conveyer belt and to assist the truck driver tip their load of concrete onto the conveyer. After the concrete was unloaded onto the conveyer belt from the truck, the spotter would direct the tip truck away from the Spreader machine. 51. The spotter was also responsible for recording all the information for each load of concrete that was delivered to the Spreader machine. 52. At the time of the incident there was no spotter in place, whilst the Spreader machine was travelling to the wash down area. Clean Down and Wash Down Area 53. Following dumping their load of concrete at the Spreader machine, truck drivers were required to close the tail gate and clean down their vehicle by removing loose material from their vehicles prior to returning to the batch plant for the next load. In accordance with the defendant's risk assessment and the SWMS, truck drivers were also required to wash down their vehicles following delivery of their last load of concrete for the day. 54. It was not necessary for the defendant to provide a designated wash area at the worksite. The wash down bay was provided at the batch plant. 55. The defendant did not provide a designated clean down area at the worksite. Accordingly, the truck drivers would park their vehicles at various locations ranging from 30 metres to 150 metres from the Spreader machine. Vehicle Movement Procedures 56. The defendant's procedures in place at the site where the incident occurred with respect to the movement of mobile plant and vehicles were not adequate. In particular there was no adequate procedures in place for the safe movement of mobile plant, such as a vehicle movement plan. 57. Chapter 3 Part 3.2 of the Code of Practice states in part, that — "Vehicle movement procedures should be developed based on the risk assessment and should be updated each time the conditions on the site change in a way that may affect the health and safety of persons at the workplace. It should also include an assessment of the visibility of plant and traffic from all areas of the work site. 58. Similarly, Part 3.3 of the Code of Practice provides: "Vehicle movement procedures for positioning and re-positioning plant…should include specific procedures when plant is operated near persons". Information, Instruction, Training and Supervision 59. The defendant did not provide adequate information and instruction with respect to the risks associated with the Spreader machine travelling to the wash down area at the end of the day. 60. Part 3.3 of the Code of Practice states: "instruction and information about hazards –all persons who perform work using (or on) powered mobile plant must be adequately instructed in the hazards associated with the plant and carrying out the work on site and in the control measures for safe work. Safe operating procedures should be available covering the use and maintenance of powered mobile plant". 61. The defendant provided the plant operators, spotter and leading hand with a two-way communication device so that they could maintain communication during the performance of their duties. At the time of the incident however the communication devices provided by the defendant to the plant operators, spotter and leading hand were not being utilised. 62. Mr Taylor, who was being trained in the spotter's position, was not provided with any instruction regarding the use of communication devices. Further Mr Taylor was not provided with a communication device at the time of acting in the position as a spotter. Rather, the spotter's communication device was with Mr Gabler who was laying the tarpaulins in readiness to clean the Spreader machine. Mr Harrison, who took over the supervision of Mr Taylor when he performed the spotter's duties, also had a two-way communication device, notwithstanding that it was not being utilised. 63. The defendant did not instruct the spotter to accompany the Spreader machine at all times when the machine was travelling in the vicinity of plant and other people. 64. The defendant did not provide adequate supervision with respect to the Spreader machine travelling to the wash down area at the end of the day. System of Work Following the Incident 65. On 11 October 2006, Inspector Neville Burt issued a prohibition notice (147007) upon the defendant. The notice required the defendant to: a. review existing procedures, in consultation with workers, to identify risks associated with cleaning the tipper tray of tip trucks when in the vicinity of the concrete spreader when it is operating; b. assess the risks and eliminate or control the risks; c. ensure relevant workers or others at the workplace are trained and instructed in the reviewed procedures. Annexed hereto and marked with the letter "D" is a copy of the prohibition notice. 66. Since the incident, the defendant reviewed its procedures regarding paving operations and tipper truck concrete delivery. New procedures were developed and implemented in consultation with staff. 67. On 17 October 2006 the defendant issued a revised SWMS for paving operations. The revised SWMS requires that: a. a spotter be present whenever plant is operating or travelling; b. the delineated cleaning area is to be behind paving operations whenever possible; c. no cleaning of trucks within 100 metres of spreader or paver and only in designated cleaning area; d. the cleaning or wash down area is to be listed on a daily Job Hazard Analysis card every day; e. an exclusion zone around the spreader and/or paver is to be maintained at all times machines are operating; f. if a truck driver or operator loses visual or audio contact with the spotter, spreader and truck movement/tipping must cease immediately; g. the spotter is to guide plant while moving into position for wash down. 68. The defendant also issued a Vehicle Movement Plan ("VMP") for concrete paving operations. The VMP (Concrete Paving with Spreader) provides: a. a designated truck clean out area will be located behind paving operations where possible; b. where required, a truck clean out area is to be a minimum of 100 metres in front of the Spreader and on the right hand side of median, out of the movement path of plant; c. no personnel or plant is to be in line with conveyor; and d. radio contact is to be maintained between the spreader operator, paver operator, spotter and leading hand at all times. The Defendant's Criminal History 69. The defendant has prior criminal convictions. 6 Mr BD Hodgkinson SC, who appeared for Abigroup, read an affidavit of Ronald James Yates, the Manager of Commercial and Project Services for Abigroup sworn on 4 June 2009. He was required for cross-examination. Mr Yates stated that he was authorised to make the affidavit on behalf of Abigroup. Mr Yates set out his employment, personal history and duties, which included overseeing the development, review and implementation of Abigroup's occupational health and safety management systems ("OHSMS"). He said he has held his current position since July 2006. He reports to the Managing Director of Abigroup in respect of corporate matters and to the General Manager, New South Wales in relation to State specific matters. 7 Abigroup was engaged by the Roads and Traffic Authority of New South Wales to upgrade the Hume Freeway in the Albury area. It contracted BKM to supply a tipper truck and driver to convey concrete from the batching area to the site. Mr Edgcumbe was employed by BKM. Mr Edgcumbe held a heavy vehicle driver's licence and underwent a plant operator's assessment by Abigroup on 6 March 2006. He was found to be competent in the safe operation of the tipper truck. This assessment was reconfirmed on 29 September 2006. Mr Edgcumbe was provided with a site induction on 13 March 2006. He received training on 6 October 2006 in the relevant safe work method statement ("SWMS") titled "Work Process: Tipper Truck Concrete Delivery" dated 29 September 2006. In addition, he was provided with occupational health and safety information through daily job hazard analysis reviews. He also completed a general induction for construction work in New South Wales with WorkCover on 30 August 2005. Copies of the records relating to Mr Edgcumbe's training course and licence were annexed to Mr Yates' affidavit. 8 The work of the concrete spreader machine was to deposit concrete on the road surface. A paver follows the spreader, which shapes and compacts the concrete to form a concrete paved road. A spotter was used, under the system of work in place at the time of the incident, to spot the truck delivering the load of concrete to the spreader, rather than the movement of the spreader. The spotter's role was not to observe the spreader, but to observe the truck. 9 Abigroup conducted a safety risk assessment and developed a SWMS dated 6 April 2006 titled "Work Process: Paving CRCP Base using Spreader" ("the Paving SWMS"). The SWMS addressed the delivery of concrete by tipper truck to the spreader and the placement and finishing of the concrete by the spreader and paver at the site. A copy of the Paving SWMS was annexed. 10 The risk assessment and the Paving SWMS was undertaken and prepared by the paving engineer and reviewed by the paving foreman, each of whom had experience working on concrete paving. The paving SWMS was approved by the senior project manager. On 6 April 2006, it set out the various work activities in paving the freeway and identified the risks arising from each work activity and the relevant risk controls to minimise or eliminate the risks associated with the task of paving the freeway. It specifically referred to the risks of being "crushed between two plant items" and "collision with other vehicles" when placing concrete in front of the spreader. It further provided that "only authorised personnel (are) allowed in front of the spreader" as a risk required to be controlled.. 11 The Paving SWMS also referred to the risks of being "struck by construction traffic" or "run over by machine moving" when cleaning down the spreader machine. The relevant risk control identified was "no parking within 30 metres of machine ("the spreader"), unless involved in the process when washing down the spreader." 12 Mr Yates acknowledged that it appeared that Mr Edgcumbe may have parked his truck approximately 20 metres from the wash down area. The defendant's workers signed off on having received the toolbox training in relation to this safe work process in April 2006. A copy of the record of the toolbox was annexed. The SWMS was prepared to identify the risks involved in the movement of tipper trucks at the concrete batch plant and whilst entering, leaving and travelling on the site and at the spreader and paver when delivering and discharging a load of concrete. 13 The risk controls to be implemented included that all drivers were to: (i) "follow traffic control directions in place"; (ii) "use UHF radio as per sign to communicate arrival on site"; (iii) "obey all speed and traffic advisory signs when travelling on site" and "give way to heavy plant"; (iv) "understand the range of activities happening at the tip site and become familiar with normal movements of machines, materials and people"; (v) "follow receiving clearance from the spotter to leave tip site, check the path ahead for plant, equipment and people and then move when clear". 14 Mr Yates stated that in addition to the Paving SWMS and the Concrete Delivery SWMS, a significant number of toolbox talks and other documents were prepared providing guidance for the operation and movement of trucks and other vehicles in and around the vicinity of the concrete paving operations. Copies of the records of toolbox and supporting documentation providing information on safety were annexed to the affidavit. 15 Mr Yates' evidence was that the incident occurred after the last truck carrying a load of concrete which was delivered by Mr Edgcumbe, had been discharged at the spreader and Mr Edgcumbe had moved his truck in advance of the spreader before alighting to clean loose material from and close the tailgate of his tipper truck. 16 Under normal operating conditions, the spreader moves at 1 - 1.5 metres per minute. However, when moving to a position where it is to be cleaned down after completing, placing and spreading for the day, the spreader moves at a speed roughly the equivalent of walking pace or approximately 50 metres per minute (approximately 3 kms per hour). 17 Mr Yates acknowledged that the SWMS did not take into account the additional speed of the spreader when travelling to its clean down area after the last delivery of the day. He observed that the Paving SWMS stipulated however that there was to be "no parking within 30 metres of machines (at the wash down area) unless involved in the process". When the tipper truck stopped to clean and close the tailgate this was not observed. 18 As a result of the incident, Mr Yates said that the Paving SWMS was reviewed, updated and replaced with an SWMS entitled "Work Activity: Paving Concrete" dated 17 October 2006. A copy of this SWMS was annexed to the affidavit. 19 This SWMS attaches Vehicle Movement Plans, which set out in detail the locations of, and rules to be adopted in respect of cleaning areas for trucks. The risk of "collision with person/plant/object" during the "last truck of the run" was included in the updated Paving Concrete SWMS. This SWMS now comprises the following controls: (i) "Delineated cleaning area to be behind paving operation whenever possible or no cleaning of trucks within 100 metres of spreader and only in designated cleaning area"; (ii) "Cleaning area to be listed on JHA every day"; (iii) "Exclusion zone around spreader and/or paver to be maintained at all times machines are operating"; (iv) "Spotter to accompany machines while operating or travelling"; (v) "If truck driver or operator lose visual or audio contact with Spotter, spreader and truck movement/tipping must cease immediately". 20 All employees were trained on the updated Paving Concrete SWMS. Prior to drafting the updated SWMS, Abigroup convened a meeting on 12 October 2006, which was attended by the State Safety Manager, State Safety Co-ordinator, project safety manager, representatives of the concrete paving crew and truck operators, the senior plant mechanic, project manager and paving engineer. 21 The meeting reviewed the existing Paving SWMS and recommended changes. Before adopting the updated Paving Concrete SWMS, the defendant undertook the following steps: (i) On 14 October 2006, a draft SWMS was presented to the concrete paving crew for review and comment and their observations were incorporated into the draft SWMS as agreed; (ii) The Paving Concrete SWMS was completed on 17 October 2006 along with the VMPs and forwarded to WorkCover on that date; (iii) The Defedendant received verbal confirmation from WorkCover that Prohibition Notice Number 147007 was lifted; and (iv) WorkCover confirmed the lifting of the Prohibition Notice Number 147007 in writing on 19 October 2006. 22 Mr Yates set out the relevant corporate background of Abigroup. He said it has been in business since 1957 and is one of the leading civil engineering and building companies in Australia. It currently has 2403 employees. It had a total revenue for the year ended December 2008 of $1.99 billion. It has carried out construction work on numerous major road works in New South Wales, the Sydney Airport runway and coal and water infrastructure works in Newcastle and the Hunter Valley. Its building projects have included the Acer Arena for the Sydney Olympics, the reconstruction of the Mater Hospital in Newcastle, the construction of the Central Administration Building at the University of Sydney and the Pacific Square's retail and residential complex at Maroubra. 23 Mr Yates stated that the defendant is committed to ensuring a safe workplace for both its employees and non-employees. As testament to this approach, Abigroup's safety record for the year 2008 showed a 60 per cent improvement in lost time injury frequency rate. This was evidenced in a fall from 8.1 per cent in December 2007 to 3.0 per cent in December 2008. An extract from the National Monthly Safety Report dated December 2008 was annexed to the affidavit. 24 Mr Yates stated that the defendant has in place a number of policies that demonstrate its commitment to occupational health and safety management practices. These include a rehabilitation policy; a drug and alcohol policy; harassment free policy, and discrimination, equal employment opportunity and equal opportunity for women policy. Copies of these policies were annexed to the affidavit. 25 Its occupational health safety and management policies are audited both internally and externally. These include the defendant's system procedures manual, which is a comprehensive serious of integrated OHS procedures, which covers Abigroup's expanding operations. The key components of Abigroup's OHSMS prior to the incident included safety risk management; preparation of safe work method statements or hazard control plans; safety induction training; notification and investigation of incidents; contractors' safety management; internal audit; external audit; safety inspections; consultation and identification and control of specific hazards and risks in relation to sites and work activities. Copies of documents dealing with each of these areas were annexed to the affidavit. 26 Abigroup also prepares quarterly reports for its Board in respect of the OHSMS. These have been prepared since July 2001. A copy of the quarterly report on the management systems for the period October/December 2008 was annexed to the affidavit. Any recommendations in the quarterly reports are acted upon by the Board and the Board monitors the progress of changes or developments, which have been recommended. In addition, senior managers in the New South Wales Civil and Building Operations, the defendant's Board and Abigroup's Board receive occupational health and safety reports on a monthly basis, detailing injury statistics for the relevant month and other OHS related information. 27 In order to ensure that its OHSMS' are effectively implemented, Abigroup conducts regular audits and reviews, both by internal personnel and external consultants. These audits address the continued development and implementation of safety policies and procedures, the identification of risks to health and safety and training of employees and sub-contractors. 28 Mr Yates stated that the defendant provides substantial resources to facilitate the integration of its OHSMS with its day-to-day operations. This is supported by the provision of committed OHS personnel dedicated to developing and maintaining a spirit of safety consciousness within the defendant and in relation to all projects undertaken by it. Its OHSMS and OHS policies and procedures are supported by extensive SWMS' development and review. 29 Abigroup completes a pre-construction risk assessment prior to the commencement of each project and risk assessments on work activities prior to their commencement throughout the project. Risk assessment and the results are regularly reviewed throughout the project. SWMS' are developed through consultation with employees and others identifying the steps, looking at the potential hazards, applying a risk making and implementing a hazard control. The SWMS' are then reviewed in the field and extensively toolboxed to encourage ownership by the employees involved in that particular activity. A daily job hazard card is also used to identify any new hazards or to reinforce any aspects of the SWMS that require particular attention or require any amendment. In addition, subcontractor SWMS and safety plans are reviewed by the defendant in accordance with New South Wales Government Guidelines, Occupational Health and Safety Management System Guidelines, 4th Edition 2004. 30 Mr Yates stated that the defendant is contrite in respect of the incident. It organised with the assistance of the project site consultative committee, a collection for the children of Mr Edgcumbe. An amount of approximately $43,000 was raised and this amount was matched equally by the defendant, bringing the total to approximately $86,000. A trust fund has been established for Mr Edgcumbe's four children. The amount paid to the Trustees by the defendant to be held in trust as at 7 August 2007 was $98,721.98. 31 Mr Yates' evidence was that subsequent to the incident, the defendant commenced road construction on the next section of the Hume Highway, north of the site. At the start of this project, a new behavioural-based OHS program was instituted. The program is called "liveit", which is a proprietary product of Sinclair Knight Merz and is designed to trigger a shift in the health and safety reasoning of the management and workforce employed in the construction industry so that they participate in the development and implementation of a real and recognisable safety culture. The details of the "liveit" program were included in a document annexed to the affidavit. As a consequence of the acceptance of the "liveit" program the defendant has developed its own safety leadership program built on similar principles. The program is called "Pulse - Safety Never Stops" and is based on research conducted by the Cooperative Research Centre for Construction Innovation, which showed that 85 - 95 per cent of workplace injuries and/or incidents are due to unsafe acts rather than unsafe conditions. It emphasises behavioural safety training. The first training sessions were conducted in May 2009. 32 Mr Yates described the defendant as a good corporate citizen and that it supported a variety of groups from local sporting teams to health, education and national research foundations. It is committed to furthering the engineering profession and nurturing a stimulating work environment. It offers employees opportunities for personal growth and professional development and a number of scholarships, cadetships and apprenticeships to those entering the engineering and building industry. In 2006, the defendant sponsored 31 employees through TAFE certificate III in manufactured mineral products at Albury Wodonga. It also sponsored a record number of scholarships to student engineers and building cadets. It has also received a number of awards and prizes in 2006, 2007 and 2008 for excellence and high standards for a number of its projects. Included in its awards was the 2006 MBA Safety Award for Commercial Projects costing over $50 million for the Mater Hospital in Newcastle. Mr Yates annexed a detailed list of the awards that the defendant has received in the last three years. 33 During cross-examination, Mr Yates acknowledged that Mr Edgcumbe had not signed any of the toolbox talk attendants' sheets in respect of attendance at paving SWMS toolbox discussions, or BKM toolbox discussions. Relevant Principles 34 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 35 Each counsel acknowledged that the primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the statement of agreed facts and the evidence. 36 The defendant pleaded guilty to the charge and particular (a) being that it failed to provide and/or maintain a safe system of work with respect to mobile plant and vehicular movements at the site. Particulars of an offence are provided to enable a defendant to fairly meet and understand the allegations made against it. The defendant did not admit the remaining particulars. In Higgins v Avoca Estate Agency Pty [1999] NSWIRComm 559. Wright J, President stated: ... the requirement at common law is that an information must identify the essential factual ingredients of the offence charged. That is, the information must specify the time, place and manner of the defendant's acts or omissions. 37 Ms McDonald submitted that where particular conduct is covered by one or more particulars, whether there is an overlap between the particulars of certain conduct should not be determinative of the sentence to be imposed by the Court. In determining the sentence to be imposed on the defendant, it is the conduct that has been established, which I propose to take into account in determining culpability. That conduct included that the defendant introduced a code of practice entitled "Moving Plant on Construction Sites" which identified the key role played by a risk assessment in respect of the risks encountered with moving plant. Such assessment should have identified all risks and included steps to control such risks. This should have resulted in measures to control risks which should have included the use of spotters whenever the spreader machine was operating or travelling; isolating or separating vehicles and pedestrians and developing vehicle movement procedures. 38 Although the defendant, as part of its occupational health and safety management plan completed a safety risk assessment of the paving operations with the concrete spreader and its contractor BKM undertook a safe work method assessment for tipper truck concrete delivery, the risk assessment process was deficient in that there was a failure to identify and/or adequately control a number of risks, including first, the additional speed of the spreader machine when travelling to its wash down area after the last delivery of concrete for the day; secondly, the design and implementation of safe working distances from the spreader machine when travelling to the wash down area at the end of the day and thirdly, the identification of an area of isolation in which drivers could park their trucks to close the tailgate and clear and remove loose material from their trucks before returning to the batch plant. 39 Although it was part of the system of work for a spotter to be present when tipper trucks were delivering their load onto the conveyors of the spreader, there was no requirement for the spotter to continue his or her duties once the spreader began to travel. 40 The system of work in place at the time of the incident relied primarily on two SWMS - the defendant's paving SWMS and BKM's concrete delivery SWMS. Although the paving SWMS identified the risks of being struck by construction traffic and not to park within 30 metres of machines, the SWMS was clearly inadequate. The SWMS did not deal with the risk that arose in respect of this incident. Mr Edgcumbe delivered the last load of concrete for the day onto the spreader's conveyor. He then drove his vehicle in a southerly direction some distance from the spreader. Estimations by the work crew were between 30 - 50 metres away from the spreader. The wash down area was 20 metres further south from this position where Mr Edgcumbe parked his truck before he alighted to begin the task of cleaning. The spreader then moved towards its wash down area with its conveyor still extended and collided with the tailgate of the truck. Mr Edgcumbe was complying with the provisions of the SWMS when he parked his truck for cleaning. 41 Mr Hodgkinson acknowledged that an important aspect of the safe working methodology in relation to the spreader machine was overlooked when it was travelling. In particular, counsel accepted that the spotter's role was overlooked in relation to when the spreader machine was travelling, as opposed to when it was undertaking normal operations. Counsel conceded that the system of work was deficient because the defendant should have had a spotter engaged. This procedure was introduced in respect of the revised system of work after the incident and approved by WorkCover. To confine the risk to safety as being the failure to have a spotter when the spreader machine was travelling overlooks the risk to safety from failing to have a clearly delineated area for the cleaning of the truck. A causal connection between the travelling of the machine and this risk to safety is established. It has never been the case in this jurisdiction that the prosecutor must put forward one causative act and omission and link it with the risk. The remedial steps introduced by the defendant after the incident also addressed this risk. I will return to this aspect shortly. 42 The risk of a truck driver who had alighted from his truck being struck by moving plant at a road construction site was obvious and potentially of the utmost seriousness in terms of likely consequences. In my view, the risk was foreseeable, firstly, because the risk posed by moving plant on construction sites is well known through the industry and is reflected in the code of practice dealing with moving plant on road construction sites. Secondly, it was a requirement of the tipper truck SWMS that a driver before leaving a construction site "ensure tailgate is secured in the closed position, clean any known pollutants/rubbish from vehicle before entering the local road system". Thirdly, the risk was identified in a particular area in the road construction site, that being the area where the truck driver delivers the load of concrete onto the spreader/conveyor. There was no proper assessment and/or control of the continuation of the risks away from that area. 43 It is necessary to assess the degree of culpability for the breach of the Act that can properly be attributed to the acts and/or omissions of the defendant in order to determine the gravity of the offence to which the defendant has pleaded guilty. The failure was to have a proper and adequate system of work for truck drivers when they alighted from their trucks to clean and close the tailgate so that drivers were not exposed to a risk by moving plant on the construction site. 44 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was readily foreseeable that a truck driver after alighting from his truck and in effect becoming a pedestrian on the construction site could be struck by moving plant. 45 The seriousness of the risk, its foreseeability and the ease of removing the risk, renders this offence to be in the mid-range of seriousness. There is also the particular aggravating factor of the death of Mr Edgcumbe: s 21(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 46 The seriousness of the offence is demonstrated by the simple and straightforward steps that the defendant was able to implement to meet its obligations under the Act. These included: (a) requiring a spotter to be present whenever plant is operating or travelling and in particular the spotter is to guide plant when moving into position for wash down; (b) designating an area for the mandatory clean down by the truck drivers of their trucks after delivery; (c) designating safe work distances between the spreader or paver and the area where the truck drivers are cleaning down; (d) development of a proper vehicle movement plan. 47 In addition to the factors relating to the offence, the Court is required in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. In Inspector Mayell v Bilfinger Berger Services - Roads Pty Limited (formerly known as Abi Road Maintenance Pty Limited) and Another [2009] NSWIRComm 10, Backman J described the road construction industry as follows: ... Work within that industry carries with it the potential for exposure of persons to serious risks to their safety by reason of their proximity to traffic and moving plant, if adequate safety controls are not put in place at the worksite. It is of critical importance therefore for employees and contractors to have in place adequate traffic safety controls. Failure to do this may result in prosecution and severe penalties. 48 I respectfully agree with her Honour's observations. I consider it is appropriate to draw attention once again to the need for employers and contractors operating in the road construction industry to ensure that they have in place adequate traffic safety controls. 49 In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional punishment aimed at deterring the defendant from further offending against the Act and for the purpose of compelling the defendant's attention to occupational health and safety so that persons are not exposed to risks to their health and safety. The defendant has been in operation since 1957. It operates in a dangerous industry and has taken appropriate measures to avoid a recurrence of the offence. The evidence of Mr Yates demonstrates that the defendant has a strong commitment to health and safety in the workplace and their policies and practices reflect this fact. However, the defendant remains an employer in the road construction industry in circumstances where there will continue to be interaction between plant, employees and pedestrians. I include an element in the penalty for specific deterrence. 50 There are a number of subjective considerations. Firstly, a plea of guilty was entered at the earliest opportunity. I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383. I also take into account the size and nature of the defendant's business. The defendant currently employs 2403 employees in Australia. 51 I also take into account that the defendant co-operated with the WorkCover Authority in its investigation. Despite previous convictions, I consider in the circumstances, that the defendant does not indicate a propensity to re-offend. 52 Section 21A(d) of the Crimes (Sentencing Procedure) Act provides that an aggravating factor that may be taken into account in determining the appropriate sentence for an offence is the fact that the offender has a record of previous convictions. In all, these number 11 during the period 1996 to May 2005. In Veen v The Queen (No 2) (1988) 164 CLR 465, a majority of the High Court held: ... The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. (at 477 - 478). 53 The effect of the prior criminal record of the defendant where it is relevant to sentencing is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may all indicate a more severe penalty is warranted." 54 For a period of in excess of 50 years, the defendant has operated in a dangerous industry. Five of the offences relate to an incident in 1995. The most serious of the offences are in respect of five charges brought pursuant to s 15(1) and s 16(1) of the 1983 Act in respect of gas explosions which occurred near Kogarah Railway Station where there were two fatalities and 16 persons injured. In my view, the seriousness of this offence cannot be considered as equal of, or a more serious offence than any of the five offences found in relation to the Kogarah gas explosion. I accept that none of these convictions involved similar circumstances to those under consideration here. 55 I also take into the account the contrition and remorse demonstrated by the defendant. The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [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. 56 The evidence discloses that an amount of $98,721 was deposited into a trust account for Mr Edgcumbe's children. 57 The maximum penalty for the defendant in light of its previous convictions is $825,000. Having regard to all of the relevant circumstances set out in these reasons, I consider the proper penalty for the defendant is $300,000. ORDERS 58 The Court makes the following orders: In matter No IRC 1912 of 2008: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence as charged. 3. The defendant is fined an amount of $300,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ---------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.