Industrial Court of New South Wales CITATION: Inspector Mulder v South Coast Equipment Pty Ltd [2007] NSWIRComm 98 PROSECUTOR Inspector John Mulder PARTIES: DEFENDANT South Coast Equipment Pty Ltd FILE NUMBER(S): IRC 3324 of 2006 CORAM: Staff J CATCHWORDS: Occupational Health and Safety - Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 - Resource extraction and recovery industry - Employee electrocuted in carrying out welding work - Fatality - Greater risk of electrocution when welding in damp clothing caused by perspiration or weather conditions - Extensive remedial steps taken within organisation and in industry generally - Whether appropriate to take into account in respect of general deterrence - Appropriate to take such conduct into account in considering subjective matters - Not appropriate to discount objective seriousness of the offence because of such steps - Specific deterrence - Potential of re-offending low - Early plea of guilty - Good corporate citizenship - Exceptional commitment to occupational health and safety - Genuine remorse - Victim impact statements - Offence proven - Penalty imposed. LEGISLATION CITED: Occupational Health & Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 CASES CITED: Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003) Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 R v Previtera (1997) 94 A Crim R 76 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 HEARING DATES: 23 March 2007 DATE OF JUDGMENT: 9 May 2007 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms R Panagoda WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT Mr BD Hodgkinson SC Solicitor: Mr A Salmon Fisher Cartwright Berriman JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 9 May 2007 Matter No IRC 3324 of 2006 INSPECTOR JOHN MULDER v SOUTH COAST EQUIPMENT PTY LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 98 1 South Coast Equipment Pty Ltd ("the defendant") has pleaded guilty to a breach of s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). This judgment concerns a penalty to be imposed for that offence. 2 The defendant operates a diversified company undertaking a number of business activities associated with heavy industry, resource extraction and recovery at its premises at Lot 1, Shellharbour Road, Kemblawarra, New South Wales. 3 On 22 October 2004, Mr Scott Angel, an employee of the defendant was undertaking welding work when he was electrocuted and died. 4 The charge under s 8 (1) was that the defendant: FAILED TO Ensure the health safety and welfare at work of all its employees, and in particular, Scott Andrew Angel, contrary to Section 8(1) of the Occupational Health & Safety Act 2000. 5 The particulars of the offence are the defendant: 1. Failed to ensure that an adequate risk assessment was undertaken by its employees engaged in welding work and in particular that any such risk assessment: (i) identified all of the risks associated with undertaking welding work whilst working in damp clothes and/or in an area that could be affected by dampness where the work was undertaken on a metal surface; (ii) identified the need for the use of suitable insulating or personal protective equipment (such as gloves or an insulating mat) whilst undertaking welding working in damp clothes and/or in an area that could be affected by dampness where the work was undertaken on a metal surface. (iii) identified all the risks associated with performing the welding task in a restricted space requiring the electrode holder to be held close to the body while being used whilst working in damp clothes and/or in an area that could be affected by dampness where the work was undertaken on a metal surface. 2. Failed to ensure that there was adequate instruction and training provided to employees responsible for the supervision of welding work in wet or damp conditions so as to prevent the risk of electrocution; 3. Failed to ensure that there was a safe system of work for employees carrying out welding work on metal surfaces so as to prevent employees undertaking welding work in wet or damp conditions from being exposed to the risk of electrocution. As a result of the said failures, Scott Angel was placed at risk to his health and safety and was fatally injured. 6 The prosecutor tendered an agreed statement of facts which, excluding formal parts, provided the following information: ... 3. The Defendant carries on, and at all material times carried on, business as a processing plant at Lot 1, Shellharbour Road, Kemblawarra, New South Wales. 4. At all material times, the Defendant employed Scott Angel ("the deceased") as an Operator. Mr Angel was a qualified boiler maker/fitter. At all material times the Defendant employed Brett Hardy ("Mr Hardy") as a Plant Leader and Robert Taylor ("Mr Taylor") as Process Operations Manager. Mr Taylor was the deceased's direct supervisor. THE INCIDENT 5. On the morning of 22 October 2004, the deceased and Mr Hardy commenced their shift at 3:00 am. During the morning they worked together removing slag from the processing plant. The work involved physically shovelling slag as well as using machinery in an outside environment. It was raining. Both workers wore company issued clothing including raincoats. 6. Following completion of this work and due to his clothing being wet (according to him from perspiration), Mr Hardy had a shower and changed into dry overalls. The deceased did not change his clothes. 7. Following a break for morning tea, the deceased and Mr Taylor began work on a welding job on the coke hammer mill. The job required the welding of small metal blocks on either side of the coke hammer mill to hold in place the wear liner plates. 8. Before starting work, Mr Taylor and the deceased conducted a risk assessment of the job. The need to isolate the coke hammer mill in order to prevent it being started while they were working on it had previously been identified. They also determined that it would be safer to use a borrowed portable welding machine rather than run leads from the welder owned by the Defendant across the wet ground outside the processing plant building. The deceased also wore the standard personal protective equipment for welders including work gloves and a welding visor. 9. The risk assessment did not consider the risks associated with undertaking welding work while wearing damp clothing or whilst working in an area that could be affected by dampness. The risk assessment did not consider any risks that might be associated with using electrical equipment whilst wearing clothing that was damp. The risk assessment did not consider any dangers associated with working in an area affected by dampness where it was necessary to hold an electrode holder close to the body. The risk assessment failed to identify the need to use any insulating material between the deceased and the metal grill working platform whilst working with electrical equipment. The risk assessment was not documented and consequently easily reviewable by responsible and competent persons. The deceased, the deceased's supervisor, and Mr Hardy participated in the risk assessment. 10. The same task had been completed on a previous occasion by the deceased and Mr Taylor. Mr Taylor had provided verbal instruction and conducted a risk assessment with the deceased on this previous occasion. The risk assessment did not consider the risks that may be associated with using electrical equipment whilst wearing clothes that were damp. 11. Following the risk assessment the deceased commenced the work that was proposed in accordance with the risk assessment. The deceased completed the first weld. He then relocated the equipment to the other side of the coke hammer mill in order to complete the second weld. 12. The second weld required the deceased to crouch down on his knees and elbows, or lay down, on a steel grill platform and place his head at or near the platform floor level in order to view the spot where the welding was required. Mr Taylor was present on the platform at all times during the welding work. The photos referred to below in annexure "D" show the likely position of the deceased at the time. 13. There was no insulation mat or other non-conductive material between potential body contact points including the elbows and knees and the hammer mill or the steel platform. 14. After confirming the correct positioning of the second block to be welded, the deceased indicated to Mr Taylor that he was about to weld. Mr Taylor turned his back on the deceased to protect his eyes. When, after waiting for a short time, he had not seen the flash of the welder, Mr Taylor turned around. He saw the deceased convulsing lying outstretched on his side/back. 15. Mr Taylor called out to another employee, Mr Hardy, to pull out all the power sources and call an ambulance. Mr Taylor then commenced to administer resuscitation. Two other workers were alerted and came to assist Mr Taylor in administering resuscitation on the platform. 16. The deceased was moved from the platform to the ground and the workers continued to administer CPR until the police and ambulance arrived on the scene. 17. Inspector Colin Fraser, who visited the site on the day of the incident, examined the work shirt of the deceased. The shirt appeared to have been cut with scissors. He found the shirt to be only slightly damp on the back but significantly damp on the arms. The shirt was soiled. 18. Inspector Fraser examined two pairs of gloves at the scene of the incident. The pair under the drive belt guard was slightly damp and an identical pair on top of the drive belt guard with safety glasses on them was relatively dry. Both pairs of gloves were all purpose leather and cotton work gloves. It is not clear which pair of gloves the deceased used. There were some other relatively clean and dry gloves on the floor next to the west wall. 19. A copy of Inspector Fraser's Factual Inspection Report relating to his visits to the site on 22 October 2004 and 1 February 2005 is annexure "A" to this Statement of Facts. A copy of 30 colour photographs taken by Inspector Brett Jurmann on 22 October 2004 is annexure "B" to this Statement of Facts. A copy of 5 colour photographs taken by Mr Norman Donnelly on 22 October 2004 is annexure "C" to this Statement of Facts. A copy of 10 colour photographs taken by Inspector Jill Ingram is annexure "D" to this Statement of Facts. The photographs in annexure "D" were intended to depict the position of the deceased immediately prior to his electrocution. 20. On 13 March 2006 David Fraser, an Electrical Engineer employed by Testsafe Australia, supplied to Inspector Fraser a report that examined the circumstances of the incident. A typographically corrected copy of the report is annexure "E" to this Statement of Facts. Mr David Fraser completed a second report that examined aspects of the likely configuration of electrical circuits leading to the potential for electric shock as an addendum to the earlier report. A copy of the second report is annexure "F" to this Statement of Facts. On 25 October 2005 Associate Professor John Duflou, a specialist forensic pathologist retained by Unisearch, completed a report into aspects of the incident. A copy of that report is Annexure "G" to this Statement of Facts. 21. Annexure "H" to this Statement of Facts is a copy of Australian Standard AS 1674.2 that relates to Safety in welding and allied processes. Annexure "G" to this Statement of Facts is the Australian/New Zealand Standard ASNZ 60479.1:2002 that relates to effects of current on human beings and livestock. INQUEST 22. A coronial inquest was held. On 28 February 2006, the coroner found that the deceased had died as a result of electrocution. The coroner stated: "What I accept is far less understood and has only become apparent, at least to those present, as a result of the testing carried out by Mr Fraser, is that even damp clothing and not necessarily dripping wet, but only even damp clothing can be a conductor of electrical current. That was probably the critical factor…Mr Angel did not present as a person who would have knowingly undertaken the risk that ultimately caused his death. He was a qualified and apparently competent tradesman…. It took some fairly sophisticated testing to establish the level of conductivity of a damp shirt. In those circumstances I have no doubt that Mr Angel had no appreciation of the potential risk to himself." SYSTEMS OF WORK PRIOR TO THE INCIDENT 23. Prior to the incident, the Defendant had a comprehensively documented and internationally certified corporate management system. The corporate management system set out the responsibilities of all parties including managers and supervisors. This system integrated OHS management and was committed to continual improvement. The Defendant's management system did not specifically provide a documented risk assessment for welding work. There were documented work instructions in place for other work activities. Verbal and documented toolbox meetings and audits were also conducted by the Defendant at the worksite as a part of the corporate management system. Neither the occupational health and safety management system, nor the documented work instructions nor the toolbox meetings dealt with the risk associated with working with electrical equipment whilst wearing clothes that were damp. 24. The deceased's immediate supervisor, Mr Taylor, was present at the time of the incident. Mr Taylor had very limited awareness that carrying out metal arc welding in a restricted space, whilst wearing damp clothes and where the work was undertaken on a metal surface without insulation mats increased the risk of electrocution. 25. The portable welder used by the deceased did not have a voltage reducing device and the electrode holder did not have a trigger mechanism to provide a more controlled and therefore safer working environment (refer to AS 1674.2 2003 section 3.2.7). SYSTEMS OF WORK AFTER THE INCIDENT 26. Following the incident, the Defendant has developed written risk assessment checklists and procedures for welding work. Employees have been trained in the operation of the written risk assessment checklists and procedures for welding work. All employees who carry out or supervise welding work have undertaken courses on welding work. All contractors who carry out welding work for the Defendant must also complete a welding induction process prior to conducting such work. 27. Managers and supervisors of the Defendant have received further WorkCover accredited risk management training. In addition, the Defendant has provided further information relating to its risk control activities including installation of voltage regulators on welding units, the switch from the use of AC to DC welding machines, the use of welding mats and the direction to use the spare dry clothing that has been made available by the Defendant should clothing become moist or dirty. The spare dry clothing has always been available. 28. In July 2006, the Defendant also funded, at its own initiative, a welding safety workshop for general industry to educate persons on the risks associated with dampness and welding work. 29. The Defendant fully co-operated with WorkCover in its investigation of this matter. 30. The Defendant has prior convictions under the Occupational Health and Safety Act 2000 or associated legislation. 7 The prosecutor also tendered a factual inspection report by Inspector Colin Fraser dated 2 February 2005; 35 colour photographs taken on 22 October 2004; 10 photographs taken on 1 February 2005 re-enacting the work carried out by Mr Angel; two colour photographs dated 25 October 2005 depicting long leather welding gloves and coveralls and the Coke Hammer Mill ("the site"), where the welding was to take place and welding equipment; a TestSafe Australia Report No 26016A in respect of the incident, together with an addendum to the report dated 16 February 2006; a report prepared on behalf of Unisearch, a Division of NewSouth Global Pty Ltd, in respect of Mr Angel's accident by Associate Professor Johan Duflou, Consultant Forensic Pathologist dated 25 October 2005; and the Australian/New Zealand Standard - Effects of Current on Human Beings and Livestock Part 1 "General Aspects and Safety and Welding and Allied Processes", Part 2 "Electrical" and the defendant's prior convictions which showed three prior convictions. 8 The Court also received victim impact statements by Mrs Diane Angel, Scott Angel's mother and Brad Angel, Scott Angel's brother. 9 The defendant tendered affidavits of Michael Anthony Aubin, who is the General Manager of the defendant Industrial Services and Ian Edward Price, the Group Occupational Health, Safety and Employment ("OHS&E") Risk Manager, SCE Group Pty Ltd, a related corporation of the defendant. Neither witness was required for cross-examination. 10 Mr Aubin commenced employment with the defendant in 1990, initially in the position of Operations Supervisor, before occupying the positions of General Manager - Integrated Steel Mill Services, Manager SCE Concrete Plants and General Manager - SCE South Australia, before becoming General Manager of Industrial Services in 1998. Mr Aubin described his duties and responsibilities, together with his qualifications and work experience. 11 The defendant has been in operation since 1961. Its activities include, the transfer and transportation of materials and equipment; stockpiling and management of raw materials; recycling, disposal and processing of raw materials and other industrial and mining by products; production of road pavements and quality aggregates for the Construction Industry; and production of pre-mixed concrete for the Construction Industry. 12 The defendant performs a number of steel industry service tasks that involve regular exposure to hazardous situations. Examples of such tasks included molten slag transport and tipping, under furnace removal of hot slags, slag pit digging and slag loading, hot skull handling and transport, skull lancing (oxy cutting) and drop balling, spill and breakout handling and recovery, ladle and furnace wrecking, waste handling and recovery, ship unloading, skip truck services, raw material movements, crushing and screening. 13 The defendant is made up of a number of business units and employs 281 employees in the Illawarra Region, Kiama, Singleton, Newcastle and the Hunter Valley in New South Wales and the Whyalla region in South Australia. The incident took place at the defendant's Slag and Coke Processing Plant at Kemblawarra. At the time of the incident, five persons were employed at the Processing Plant. 14 Mr Aubin described the steps taken immediately following the incident. These included engaging the services of Mr Barry McNamara, a counsellor, to speak to affected employees. Information memos were placed on the notice board at the site to inform employees of the incident and the process of investigations. The defendant offered ongoing support and liaised with affected employees regularly on an informal basis. Copies of the memos were annexed to the affidavit. Immediately after the incident, Mr Robert Newman, Director of the defendant, attempted to contact Mr Angel's parents. He subsequently visited them on the evening of 22 October 2004 expressing his sympathy, both personally and on behalf of the defendant. Mr Newman also offered Mr Angel's family support including counselling services. Mr Angel's partner was also contacted. Arrangements were made for Mr McNamara to provide professional services at the expense of the defendant. Senior management of the defendant and all employees employed at the site attended the funeral and contributed $4,358 to the funeral costs. A meeting was arranged between Mr Angel's family and Mr Taylor, who were working with Mr Angel at the time of the incident, together with Mr McNamara to discuss the incident. 15 Mr Aubin explained Mr Angel's duties, qualifications and experience from when he commenced employment with the defendant on 29 September 2003. He provided similar information in respect of Mr Taylor, who has been employed by the defendant for approximately 23 years. 16 At the time of the incident, the defendant employed a full-time occupational health and safety co-ordinator. This position was created in February 1996. In order to provide assistance to the defendant's supervisors and managers in their duties and to create and promote a safer workplace in their business units, the defendant successfully completed all audits and received the maximum discount under the premium discount scheme ("PDS") offered by WorkCover prior to the Scheme being withdrawn. These audits were conducted by Combined Training and Consulting Pty Ltd ("CTS"). The defendant is still committed to continuing an audit process to ensure that it is constantly reviewing its practices and keeping up to date with legislative occupational health and safety requirements, to ensure compliance with the Corporate Management Systems ("CMS"). Annexed to the affidavit were letters from WorkCover to the CTC who recommended that the defendant receive a commendation award from the Minister for Industrial Relations, the Hon John Della Bosca. 17 The defendant was also a participant in the National Safety Council of Australia's five star safety system and awarded a four star rating which expired in April 2000 (co-inciding with the implementation of the CMS), placing the defendant's occupational health and safety system in the top percentage of participating systems. The defendant is also a signatory to TruckSafe Fleet Maintenance Safety Program and implemented procedures to monitor fatigue and remains committed to ensuring that the safety principles operate. 18 The defendant devised and implemented the CMS in October 2000. This system was designed to update and improve the defendant's safety policies and procedures, which were in existence prior to 2000. Prior to implementing this system, the defendant had a number of comprehensive safety policies and procedures in place, including formal safety plans and an occupational health and safety committee since June 1987. Copies of the 1996 and 1998 Safety Plan, together with the Occupational Health and Safety Committee Constitution dated July 1998, and Minutes of the Health and Safety Committee Meeting dated 22 June 1987 were annexed to the affidavit. 19 The CMS is divided into divisions. The Occupational Health and Safety Division has developed and implemented a documented safety management plan in respect of occupational health, safety and rehabilitation; hazard and risk identification; accident and incident investigation; a rehabilitation policy/program and occupational health and safety responsibilities, authorities and duties; occupational health, safety, training and development; employee involvement in consultancy; contractor occupational health and safety plan; vehicle and mobile plant equipment and transport safety. The Safety Management Plan in existence from October 2000 was annexed to the affidavit. The CMS prescribes reporting obligations for the defendant's management with respect to occupational health and safety with meetings being held on a weekly basis. Business units are required to submit a monthly occupational health and safety question and answer reports detailing the progress of safety system audits. 20 Mr Aubin stated that a number of safety audits were conducted on the processing plant prior to the incident. Employees, including Mr Angel, participated in a system audit in July 2003 to refresh employees' awareness of CMS policies and procedures. The audit identified a need to improve access to the CMS by employees at the site. As a result, the defendant installed a new line connection and computer at the site. The defendant has developed a number of hazard identification, risk assessment and job safety analysis procedures that were in place and completed by employees in other business units as part of the CMS. The CMS was initially certified by Quality Management Systems Australia ("QMS Australia") from 2000 to 2003 and is quality accredited to the standards of IS09001:2000. Recertification of the CMS System by QMS Australia was undertaken from 2003 to 2006. 21 The defendant provides a range of assistance programs to employees including the Mentor Employee Assistance Program, which provides confidential counselling to employees, their partners and/or family. This program commenced in 1998 and costs approximately $10,000 per annum. 22 Each business unit of the defendant was also required to maintain an employee competency record. The record enables the defendant to assess whether, and at what intervals, further training of employees is required. On the job training for all new employees in relation to the safe use of equipment, risk assessment, hazard identification and relevant systems of work was provided by the defendant. Formal training for the provision of confined spaces for employees at the site was introduced in May 2004 and was conducted by a specialist external provider. The confined space training consisted of a three day intensive course which was held on site which included legislation and responsibilities, defining and identifying confined space, working safely with hazardous substances and chemicals, safe entry and working in confined spaces and confined space emergency material. A component of the training involved the implementation of risk treatment records. Documentation in respect of the various programs and training models were annexed to the affidavit. 23 Prior to the incident, there existed a combination of documented and verbal systems of work, which dealt with the work processes undertaken at the site. There was no formal documented system of work for the welding undertaken by Mr Angel on 22 October 2004. However, Mr Angel had been given on-the-job instruction by Mr Taylor on a previous occasion. The task undertaken by Mr Angel on 22 October 2004 had previously been performed by him on one other occasion. On this previous occasion, Mr Taylor demonstrated the system of work to be followed in undertaking the welding procedure and then supervised Mr Angel's performance of the task. There was no written record of the system of work or the training provided by Mr Taylor on that occasion. The defendant requires employees to complete confined space certificates prior to undertaking any such work and sign a form declaring that the employee has read the confined space clearance certificate, understands the conditions applying to confined space entry and will adhere to those conditions. A sample of both a blank and completed "confined space certificate" and declaration forms were annexed to the affidavit. 24 Mr Aubin described the occupational health and safety consultation undertaken at the site through workplace meetings and "toolbox talks" on 20 October 2004. As a result of an informal "toolbox" discussion and in anticipation for performing the work on the hammer mill in the following days, Mr Taylor completely isolated the hammer mill. All electrical power to the mill was disconnected and the mill was tagged and locked out to ensure a full isolation had taken place. Mr Taylor had also identified and assessed the risks associated with the welding equipment and working in the rain on 22 October 2004. For safety reasons he had borrowed a portable welding unit to reduce any such risks. 25 Prior to the incident, formal toolbox meetings and status reports were also conducted at the site. Status reports were completed by the General Manager and included reporting on occupational health and safety matters at the site. 26 The defendant also provided employees with relevant personal protective equipment in order to ensure employees performed their tasks safely. These included overalls, gloves, work boots, raincoats, disposable dust masks and a welding shield/or glasses. Verbal instruction had been provided to all employees as to the proper use of such personal protective equipment. The defendant also provided for the electrical tagging and testing of portable electrical equipment at the site. This was (and continues to be) undertaken by a qualified contractor who is engaged by the defendant on a regular basis. Copies of invoices for testing and tagging were attached to the affidavit. 27 Safety is one of the four criteria by which employees' performance is measured and the defendant publishes and distributes a weekly safety publication to its employees titled "This is Your Life". This newsletter was first published in 2000. It enables the defendant to regularly reinforce various safety measures relating to all safety issues affecting employees' lives. A sample of the weekly additions of "This is Your Life" was annexed to the affidavit. 28 Mr Aubin expressed the defendant's remorse and stated that it continually strives to improve occupational health and safety within all its business units. The incident has affected the lives of many of the defendant's employees, particularly those at the site and the defendant has continued to provide support and assistance to those affected employees as required. Mr Aubin stated that the defendant had fully co-operated with the WorkCover Authority of New South Wales and entered a guilty plea at the first opportunity. It fully complied with an Improvement Notice issued on 25 October 2004 and six section 62 notices. It also agreed to co-operate and assist in a proposal to draft an article for a WorkCover publication on welding safety. The defendant also fully co-operated with WorkCover and the Police in the preparation for the hearing of the Coronial Inquest. 29 Mr Aubin noted that the defendant had three prior convictions arising from two workplace incidents. Neither of the convictions involved welding or arose from incidents at this site. The defendant is a member of the Institute of Quarrying Australia ("IQA"), the Civil Contractors Federation of Australia ("CCFA") and the Australasian Slag Association ("ASA"). The defendant has management representatives on the ASA Committees and it attends monthly meetings and the forums of IQA and CCFA to promote occupational health and safety and product development. 30 Mr Aubin stated that the defendant has donated various amounts of money to a range of charities and community organisations. Since July 1999 it has donated in excess of $43,000 to approximately 39 charities, or community organisations. The defendant, since July 1999, has been a corporate sponsor for Life Education Illawarra. This is an organisation which assists in educating young people about issues including depression alcohol and drug misuse. Between July 1999 and the date of the incident, in addition to the donations referred to above, the defendant has donated in excess of $26,000 to this organisation. It has also performed maintenance work on the Life Education Van, as required, free of charge. 31 Mr Ian Price commenced employment with the defendant on 7 February 2005, initially in the position of OHS&E Manager before being appointed as the Group OHS&E Risk Manager. Mr Price described his primary duties as being to assist the defendant's management with strategic planning and program development in risk management. He also described his qualifications, work experience and stated that he had been integrally involved in the investigation into the circumstances surrounding the workplace incident involving Mr Angel. 32 Mr Price's affidavit evidence dealt with post incident occupational health and safety initiatives specific to welding. He stated that the defendant had complied with the WorkCover Improvement Notice dated 25 October 2004 and outsourced all welding work at the site to experienced welding contractors. This enabled the defendant an opportunity to fully investigate, develop and implement appropriate controls without placing any of its employees at risk. 33 During this period, Mr Price stated that the results of testing undertaken at TestSafe found that significantly low levels of dampness can almost double conductivity whilst welding, a result which surprised Mr Price and other colleagues. The testing revealed that the mere presence of dampness or perspiration on clothing resulted in the welding task falling into a high risk category of welding. 34 The Coroner, Mr McRobert, in the findings of the Coronial Inquest dated 28 February 2006, similarly accepted that industry generally was not aware of the risk of such low levels of dampness. Mr Price stated that in consultation with the defendant's Management, its affected employees, Industry Professionals, the defendant's Occupational Health & Safety Committee and WorkCover, the defendant has developed and implemented Electric Arch (Stick) Welding Work Instruction and Welding Risk Assessment guideline document. A copy of the Welding Instruction and Risk Assessment document was annexed to his affidavit. The defendant has also developed and implemented a Field Based Welding Pre-start Safety Checklist, a copy of which was annexed to the affidavit. Employees at the site have been trained in the welding procedure, set out in the Welding Risk Assessment and the Pre-start Checklist. This training involved a series of lectures and employee participation and also required employees to complete a Training Questionnaire so that the defendant could be satisfied that employees had understood the training provided. Copies of the Training Records and completed Training Questionnaires were annexed to the affidavit. 35 The defendant also undertook internal investigations into the availability of alternative clothing to reduce perspiration and/or reduce conductivity when damp from perspiration. Insulating mats have been provided to be used in the undertaking of all welding work. The defendant engaged qualified and experienced external electricians to undertake testing on the hammer mill and the portable welder to identify any hazards associated with that equipment. WorkCover also conducted independent testing on this equipment. 36 The defendant also developed and introduced a work instruction for Isolation Lock Out, which is supported by an Isolation Checklist, which is to be completed by supervisors at regular intervals. Copies of this documentation were annexed to the affidavit. The defendant also developed and introduced a Mechanical Workshop Safety Checklist, in addition to the Pre-start Checklist and further reviewed all procedures in the CMS. The defendant also arranged for its employees involved in welding to attend a training session run by an expert from Ballarat University, Mr Bob Cunningham, who has over 30 years trade experience and is the author of the Welding Safety Bulletin published by Bluescope Steel Ltd ("BSL"). A copy of this Bulletin was annexed to the affidavit. 37 Mr Price stated that after the findings of the Coroner were handed down, the defendant made presentations to a number of BSL Committees for the purpose of informing a wider network of industry representatives of the risks posed by electric manual arch welding in a raised humidity. These presentations were made by Mr Willis, Operations Manager of the defendant's Industrial Services. 38 On 31 July 2006, the defendant hosted a Welding Safety Workshop at the Fairways Resort at the Port Kembla Golf Course at Illawarra for General Industry Statutory Authorities such as TAFE NSW, the Department of Primary Industry (Mines Inspectorate) and the defendant's employees. 91 persons attended the Workshop. At the Workshop the defendant provided an overview of the incident and distributed a copy of the new Pre-start Checklist to all attendees. A copy of the PowerPoint Presentation given by Mr Cunningham was annexed to the affidavit. The defendant organised and funded further workshops conducted at the defendant's Mayfield site on 31 August 2006 and at the defendant's site at Whyalla on 26 September 2006. These workshops were conducted by Mr Cunningham. 39 The defendant has also arranged for the provision and introduction of a psychiatric counselling service to be included as part of the employee assistance program. It had previously only offered psychological counselling. This service was available at the time of the Coronial Inquest for employees. 40 The defendant engaged Mr David Barlow from Welderepair to assist it in determining the optimum type of welding machine to be used at the site. The defendant opted to use direct current ("DC") welders as opposed to alternate current ("AC") welders. All AC electric arch welding machines were replaced. 41 The defendant has also committed to provide significant financial assistance to the Welding Engineer Research Group at the University of Wollongong to undertake research to examine the quantitative effect of humid and hot work situations on perspiration and investigate the effect of the quality and composition of the perspiration on insulation degradation of typical work clothing. The defendant is providing approximately $100,000 for the research project, which is estimated to take one year to complete. The defendant has also agreed to participate in the University of Wollongong OHS Graduates Conference in 2007. It will financially assist with the sponsorship of $1,500 and also present a paper on the outcomes of the incident, the Coroner's findings and these proceedings. It has also indicated a willingness to participate in initiatives in conjunction with WorkCover such as assisting in the drafting of journal articles for WorkCover publications and the Australasian Welding Journal. 42 Mr Price described the post-incident occupational health initiatives that the defendant had embarked upon. These included the installation of a coke handling chute, the introduction of safety harness areas, barricaded areas and road markings, including "no go areas" and improved signage. Employees have been involved in the implementation of these site specific improvements through "toolbox talks" and the defendant's safety audit process. Refresher induction programs have also been conducted. Copies of the defendant's Processing Plant Induction Checklists for the site were annexed to the affidavit. All contractors to the site are required to complete the Site Induction documentation. A continuation of the review of work instructions and the CMS has been undertaken. As the work instructions are updated and amended, these are distributed to employees and employees are trained in the new procedures. 43 On 14 - 15 March and 4 - 5 April 2005, the defendant arranged for relevant employees to attend the WorkCover Accredited Occupational Health and Safety Risk Management course for Managers and Supervisors. The course was conducted by Mr Garry Nabbe from AIM Safety. 18 employees attended this training. Copies of certificates attained by employees who attended the course were annexed. The defendant has also ensured the continuation of regular documented "toolbox meetings" at the site which had commenced shortly before the incident. 44 Mr Price stated that after the incident the defendant assessed safety systems, procedures and policies within the business on a broad scale. This led to many changes, developments and improvements to the defendant's already comprehensive occupational health and safety system that was in existence at the date of the incident. In particular, the defendant embarked upon an occupational health and safety restructure across the business. This involved the recruitment of specialist occupational health and safety personnel. Mr Tom Miller, previously the Occupational Health and Safety Co-ordinator was redeployed to the position of Divisional Training Co-ordinator. On 7 February 2005 Mr Price commenced in the position of Occupational Health and Safety Manager, Illawarra Division. On 1 September 2005, Ms Carmel Soccorsi commenced employment in the position of OHS&E Co-ordinator for the defendant's Industrial Services. She had held various occupational health and safety positions in the Transport Industry prior to her appointment and had completed a Masters of Science (OHS) in 2002 and a number of other safety related courses. 45 On 19 June 2006, Ms Rachael Marshal was recruited into the position of OHS&E/QA Co-ordinator at the defendant's Resources Division based at Newcastle. Prior to her employment with the defendant, Ms Marshall held occupational health and safety positions at a number of organisations. She holds a Diploma in Occupational Health and Safety from the National Safety Council of Australia. Ms Marshall provides proactive/responsive OHS&E/QA advice, promotes the implementation of a safety culture, co-ordinates inductions and monitors corrective actions. The defendant's OHS&E personnel meet annually to discuss OHS&E across all of the defendant's Divisions. 46 In addition to the internal occupational health and safety professionals, the defendant engaged various external service providers to deliver specialised training and/or advice both prior to and since the incident, as referred to earlier in this judgment. 47 The defendant has introduced OHS&E performance measures and "Stop 4 Safety" OHS promotion days in order to instil occupational health and safety as a core value throughout its operations. On "Stop 4 Safety" days, all operational personnel attend a half day seminar on OHS related topics. The first of these days was held in July/August 2005. Subsequently, seminars were held on 8 and 15 February 2006. Copies of the Agenda, PowerPoint Presentation, the defendant's Yard Induction Process and a User Friendly Risk Assessment Template were annexed to the affidavit. 48 Mr Price stated that to assist in the open and frank communication of safety issues at "toolbox meetings", the defendant has also introduced a "Toolbox Topics" Register for Supervisors. Records of attendees, dates and topics are recorded on a "Toolbox Talk" Register. An Injured Employee Information Pack has also been introduced to raise employee awareness regarding their roles and obligations in response to injuries and incidents. A copy of the Employee Information Pack was annexed to the affidavit. 49 The defendant's CMS was re-certified to IS09001 by QMS Australia in October 2006. The defendant is currently progressing towards AS/NZS4801 certification. Since the incident, Mr Price has developed and revised a Hazard Register and provided training to employees in relation to Chemical Health and Safety. Training was conducted on 26 and 28 July 2005. 15 employees of the defendant's Maintenance Business Unit attended the training at the defendant's Coniston site for a duration of three hours on each occasion. The training involved hazard identification, risk assessment and a control of dangerous goods and hazardous substances and addressed classification, packaging, labelling, storage and spill response. A copy of the material covered during the course was annexed to the affidavit. The defendant has also developed and introduced a more robust "Fit for Work policy" to control occupational health and safety risks associated with drugs and alcohol in the workplace. 50 In both 2005 and 2006, the defendant was the subject of audits by BSL and BHP Billiton with respect to safety in order to benchmark the defendant's performance against other contractors. The defendant successfully passed these audits and continues to provide services to BSL and BHP Billiton. 51 Mr Price stated that within other Divisions of the defendant, it has introduced safety measures including a concrete truck field based checklist; work instructions for deliveries near overhead power lines; motorised load covering systems to all external company trucks to eliminate the need for climbing ladders to secure covers and work instructions for the delivery of cement to clients. It has also embarked upon a review of fatigue management practices for all drivers to ensure compliance with relevant legislation. In a letter dated 4 December 2006, WorkCover commended the occupational health and safety initiatives taken by the defendant since the incident. 52 Consistent with the evidence given by Mr Aubin, Mr Price stated that the defendant had donated various amounts of money to a range of charities and community organisations. From October 2004 to the date of these proceedings, the defendant has donated in excess of $38,000 to charities and community organisations and in excess of $19,000 to the Life Education Illawarra. The defendant is committed to supporting a number of charities and community organisations in 2007. Relevant Principles 53 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 of New South Wales (Inspector Ch'ng) (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 (Inspector Hannah) 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 54 The circumstances in which the offence occurred, and which the defendant relied upon, included the following: (i) the defendant is a relatively large corporation employing approximately 281 employees throughout New South Wales and South Australia and clearly one that takes its responsibilities for the health and safety of workers seriously. Its pre-accident policies and practices and systems of work support that conclusion: Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326; (ii) the offence with which the defendant was charged was a relatively narrow one in that it was alleged that the defendant failed to ensure an adequate risk assessment and a safe system of work was undertaken by its employees engaged in welding work on metal surfaces in wet or damp conditions. There was also a charge of failing to ensure adequate instruction and training to employees responsible for the supervision of welding work in wet or damp conditions so as to prevent the risk of electrocution. The charge did not relate to the defendant's system of work, which in the main, was sound; (iii) at the time of the incident, Mr Angel's supervisor had been employed with the defendant for approximately 23 years. He is highly skilled in the operation of machines and an experienced welder. In the five years prior to the incident, Mr Taylor had attended external training workshops in workplace hazard identification and risk assessment, confined space competencies and manual handling; (iv) Mr Angel had participated in a confined space training course He had been given "on the job" instruction by Mr Taylor on a previous occasion. The task undertaken by Mr Angel on 22 October 2004 had been previously performed by him on one other occasion. Mr Taylor had demonstrated the system of work to be followed in undertaking the welding procedure and then supervised Mr Angel's performance of the task, although there was no written record on the system of work or the training provided by Mr Taylor on this previous occasion; (v) as a result of an informal "toolbox" discussion and in anticipation of performing work, Mr Taylor completely isolated the hammer mill; (vi) Mr Taylor had also identified and assessed the risks associated with using the welding equipment and the rain on 22 October 2004 and for safety reasons, had borrowed a portable welding unit to reduce any such risks; (vii) prior to the incident, formal "toolbox" meetings were conducted at the site and status reports prepared; (viii) the defendant provided employees with relevant personal protective equipment in order to ensure employees performed their tasks with safety including overalls, gloves, work boots, raincoats, disposable dust masks and welding shields/glasses. 55 The defendant accepted that the risk assessment undertaken in respect of the welding work was inadequate but emphasised this was not a case where no risk assessment was undertaken. The agreed statement of facts highlights the inadequacies of the risk assessment as follows (at [9]): The risk assessment did not consider the risks associated with undertaking welding work while wearing damp clothing or whilst working in an area that could be affected by dampness. The risk assessment did not consider any risks that might be associated with using electrical equipment whilst wearing clothing that was damp. The risk assessment did not consider any dangers associated with working in an area affected by dampness where it was necessary to hold an electrode holder close to the body. The risk assessment failed to identify the need to use any insulating material between the deceased and the metal grill working platform whilst working with electrical equipment. The risk assessment was not documented and consequently easily reviewable by responsible and competent persons. The deceased, the deceased's supervisor, and Mr Hardy participated in the risk assessment. 56 Although the defendant submitted Mr Taylor was an experienced employee who was trained to undertake a risk assessment, the deficiencies in the risk assessment were stark, particularly the failure to ensure the use of any insulating mat or sheet. A further matter warranting assessment was, in light of the weather conditions on that day, should the welding work have been undertaken? 57 Whilst it may be accepted that the risk arose from not considering the risks associated with undertaking welding work while wearing damp clothing, or whilst working in an area that could be affected by dampness, it cannot be accepted that the risk was unforeseeable. Clause 8 of the Test Safe Report provides under the heading "The Australian Standards and Electrocution": 8.1 AS1674.2-2003 Excerpts AS1674.2-2003 A5.2 The magnitude of current flowing through a body: In general, the wetter the person's skin and the larger the surface area of body contact, the higher will be the current flowing through the body and, therefore, the greater will be the risk of electrocution. In a Category B situation, voltages of the order of 48 V a.c. or more may cause fatal shocks. Where there is dampness or perspiration, 25 V a.c. may be enough to give a fatal shock. The severity of electric shock is minimized by wearing dry gloves, rubber-soled shoes and dry clothing, even if the body is damp and perspiring. The use of cotton liners that are frequently changed to avoid welding gloves becoming saturated with perspiration is highly recommended. Standing or sitting on a dry wooden floor, a dry rubber mat or similar insulating material further enhances safety. The combined high resistance of insulating materials offers a high degree of protection against shock; however, if body contact is made through wet clothing, wet footwear or direct skin contact with metal or other good conducting material, the risk of electrocution is greatly increased. 58 It was an agreed fact that the shirt Mr Angel was wearing was only slightly damp on the back, but significantly damp on the arms. There were two pairs of gloves at the scene of the incident. One pair was slightly damp and other pair was relatively dry. It is not clear which pair of gloves Mr Angel was wearing. An insulating mat, cushion, or sheet, was not used to insulate Mr Angel's body from coming into contact with the hammer mill and/or the steel platform. The report prepared by TestSafe Australia concluded that any one of these precautions may have prevented the incident. Clearly, in light of the Standard, a proper risk assessment would have identified the risk associated with welding and moist clothing and a moist area. Section 8 of the Act requires employers to be diligent and proactive to ensure the safety of employees. 59 It cannot be assumed that because a worker, and in this case, an experienced worker, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out the possibility that he will place himself, or another worker at risk. As has been often stated by Members of this Court, the obligations on an employer under the Act requires that employers actively search out and where it is at all possible, eliminate any risk to health and safety. Simple and straightforward measures could have been taken by the defendant, which would have eliminated the exposure to the risk. The consequences of the defendant's failure were the loss of Mr Angel's life. As was observed in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94]: ... 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. ... 60 It is these circumstances which place this offence at the high end of the scale in terms of seriousness. 61 The defendant took immediate steps to implement remedial measures. A comprehensive WorkCover investigation which involved intensive testing of conductivity and levels of dampness of work clothing was undertaken by TestSafe at its Londonderry office in consultation with affected employees, industry professionals and the defendant's Occupational Health and Safety Committee. The defendant developed and implemented a documented Electric Arch (stick) Welding Work instruction and a Welding Risk Assessment Guidelines as new developments arose from the TestSafe Analysis and the WorkCover investigation. These developments were incorporated into the Welding Procedures and Risk Assessment documentation. A Field Based Welding Pre-start Checklist was implemented with employees being trained again in welding procedures, welding risk assessment and the Pre-start Checklist. This training involved a series of lectures and employee participation and the completion of a training questionnaire so that the defendant could be satisfied that its employee had understood the training provided. 62 In relation to specific deterrence, I accept the defendant's submission that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The prosecutor acknowledged that the defendant had taken significant steps to not only educate its employees in respect of the risks associated with welding in a moist environment and in wearing damp clothing and had also sought to educate other employees so as to prevent such an incident occurring again. 63 The prosecutor acknowledged that in light of the steps taken which have been set out extensively in the evidence of Mr Price and Mr Aubin that the potential of this defendant re-offending was low. The defendant has a relatively good record in a relatively large and dangerous undertaking. However, the defendant continues to operate in an industry, which because of its nature, there will remain the possibility of risks to health and safety. Accordingly, a small component of the penalty is in consideration of the need for specific deterrence. 64 As to general deterrence, Mr BD Hodgkinson SC, who appeared for the defendant, acknowledged that "essentially general deterrence is a way in which the Court can communicate with the community at large the need and importance of meeting the standards imposed by the Occupational Health & Safety Act." Senior counsel did not make any submission contrary to this principle. However, Mr Hodgkinson submitted that the Court was presented with a different circumstance here. Noting that sentencing was a matter of discretion, it was submitted that the Court could take a number of matters into account including "how best to send a message to the community" and "is it best to impose a fine?" Mr Hodgkinson went on to develop a submission that the Court had an almost unique opportunity to send a positive message to the employers of this State who are prepared to take steps beyond the confines of their own organisation to improve an aspect of industry safety generally. The Court, it was further submitted, will accept such action in part discharge of the employer's responsibilities and highlight the importance of such conduct to other employers who would be encouraged to take similar steps. 65 The role that general deterrence plays in sentencing is that it is designed to draw attention to the need for employers to be constantly vigilant to ensure that workers are not exposed to risks to their health and safety. Although I did not understand Mr Hodgkinson to be submitting that the objective seriousness of the offence should be discounted by reference to the steps that the defendant has taken both in respect of modifying its own systems and what is has done throughout industry in general, such an approach would lead to error and be inconsistent with the sentencing principles developed at Full Bench level. 66 The financial expenditure by the defendant, together with the time and resources allocated to improve safety generally in respect of welding across industry, which is clearly of benefit to employers, is in my view, more appropriate to be considered as part of the important subjective factors that may be taken into account in this matter. 67 Welding is undertaken on a daily basis throughout industry. It is important that the risks associated with this work are brought to the attention of all employers where such work is carried out. I consider it is appropriate to draw attention to the need for employers to be constantly vigilant and to ensure that workers are not exposed to risks in relation to carrying out welding work. I propose to include a significant element in the penalty for general deterrence. 68 The relevant subjective considerations were quite properly acknowledged by Mr R Reitano, counsel who appeared for the prosecutor, to be strongly in favour of the defendant in two very important respects. First, the defendant entered a plea at the first available opportunity, accepting the criminality reflected in the charge and the particulars and secondly, the defendant fully co-operated in the investigation conducted by WorkCover. In addition, it has been particularly proactive within its organisation and in industry at large as the evidence demonstrates and as I have referred to earlier in this judgment. This included the defendant making presentations to Bluescope Steel Ltd in respect to the risk posed by electric manual arch welding in raised humidity; hosting a welding safety workshop at the Fairways Resort at Port Kembla Golf Course at Illawarra attended by 91 persons from a range of businesses; committing to make a significant financial contribution ($100,000) to assist the Welding Engineering Research Group of the University of Wollongong to undertake research to examine the quantitative effect of humid and hot work situations on perspiration; assisting in drafting a welding safety article for the Australasian Welding Journal and participating in the University of Wollongong's OHS Graduates Conference in 2007 where the defendant will assist with the sponsorship of $1,500 and present a paper on the outcomes of the incident, the Coroner's finding and these proceedings. 69 The defendant is entitled to a discount on the penalty of 25 per cent in respect of its early plea of guilty. I also take into account the significant remedial measures implemented by the defendant following the accident, referred to earlier in this judgment, the defendant's good corporate citizenship and the defendant's impressive and in many respects, exceptional commitment to occupational health and safety. Mr Aubin expressed the defendant's genuine remorse in respect of the incident, which I also take into account, together with the assistance provided to Mr Angel's family and his partner. 70 The maximum penalty in this case is $825,000 given the defendant's prior convictions before the Chief Industrial Magistrate. Counsel for the prosecutor made no submissions to the effect that the prior convictions should be considered to be an aggravating feature. 71 The Court received Victim Impact Statements by Mrs Diane Angel, Mr Angel's mother, and Brad Angel, Mr Angel's brother. Mrs Angel stated that the sudden death and loss of her son had left her devastated. As a mother, losing a child is the worst pain to endure. She described Scott as having so much to live for, with a great zest for life and drive to do well. Losing Scott has left a giant hole in her heart that will never heal. Mrs Angel spoke of his needless death, which affects her every day, observing that no pain, anger, bitterness, tears or prayers will bring him back. Mrs Angel described the anguish of waiting for the Coronial Inquiry which was made worse by only being informed of the proceedings the day before, despite being in constant contact with the Police. This added to the pain and anguish of the loss of Mr Angel. 72 Mr Brad Angel spoke of being emotionally affected for at least a year after the loss of his brother. He was depressed and this affected the finalisation of his PhD causing him to fall nine to 10 months behind. The depression that he suffered led to the break up of his relationship with his girlfriend. His depression was exacerbated by observing how his parents were affected by the loss of his brother. 73 As I observed in Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 at [138]: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 74 I respectfully agree with the reasoning of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 84 - 85 where his Honour said: A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so ... In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. 75 Similar observations were made by Members of this Court in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43] and Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003). 76 I have considered the statements from Mrs Angel and Brad Angel and formed the view that it would not alter the penalty which I think is otherwise appropriate in this matter in all the circumstances of the case. 77 However, it is appropriate that the Court extends its profound sympathy to Mr and Mrs Angel and their son, Brad, and acknowledges the devastating effect that Mr Angel's death has had on them. 78 As was observed by Boland J in Foamex at [43], the receipt of a victim impact statement given by a family victim "assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace". 79 I consider an appropriate penalty, taking into account all of the circumstances set out earlier in these reasons, is $220,000. I wish to make it clear that were it not for the significant remedial steps undertaken by the defendant, the penalty imposed would have been significantly greater. 80 The defendant will pay a moiety to the prosecutor and its costs. ORDERS 81 The Court makes the following orders: 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 $220,000 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. 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