Industrial Court of New South Wales CITATION: Inspector John Patton v Bi-Lo Pty Limited and Another [2010] NSWIRComm 38 PROSECUTOR: WorkCover Authority of New South Wales PARTIES: FIRST DEFENDANT: Bi-Lo Pty Limited SECOND DEFENDANT: Fidoto Pty Limited FILE NUMBER(S): IC 150 of 2008; IC 151 of 2008; IC 153 of 2008 CORAM: Backman J Bi-Lo Pty Limited - occupational health and safety - Occupational Health and Safety Act 2000 - s 8(1) and s 8(2) pleas of guilty - fall from height - risk to safety particularised as risk of falling either from tray of truck or from dock loading hoist - worker injured after falling about 1.2 metres onto concrete floor - objective factors considered - s 21A(2)(m) of Crimes (Sentencing Procedure) Act 1999 (CSPA) considered and held not to apply - other subjective factors considered - totality - penalty - costs CATCHWORDS: Fidoto Pty Limited - occupational health and safety - Occupational Health and Safety Act 2000 - s 8(1) plea of guilty - risk of fall from height - risk to safety particularised as risk of falling either from tray of truck or from dock loading hoist - worker injured after falling about 1.2 metres onto concrete floor - objective factors considered - subjective factors considered - respective culpabilities of two defendants considered - penalty - costs Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103 R v Gamble (1983) 3 NSWLR 356 R v McNaughton (2006) 66 NSWLR 566 CASES CITED: R v Tadrosse (2005) 65 NSWLR 740 R v Walker [2005] NSWCCA 109 South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 Veen v The Queen (No. 2) (1988) 164 CLR 465 WorkCover Authority of NSW v DHL Exel Supply Chain (Australia) Pty Ltd; WorkCover Authority of NSW v McGill Holdings Pty Ltd; WorkCover Authority of NSW v DTC Pty Ltd [2007] NSWIRComm 14 HEARING DATES: 10/08/2009 DATE OF JUDGMENT: 26 March 2010 PROSECUTOR: Mr R Pontello of counsel WorkCover Authority of New South Wales (Ms P Blackmore) FIRST DEFENDANT: LEGAL REPRESENTATIVES: Ms P McDonald of counsel Sparke Helmore (Ms C Holt) SECOND DEFENDANT: Mr S J Stanton of counsel Australian Business Lawyers (Mr G Jervis) JUDGMENT: - 29 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Friday, 26 March 2010 No IC 150 of 2008 Inspector John Patton v Bi-Lo Pty Limited Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000 No IC 151 of 2008 Inspector John Patton v Bi-Lo Pty Limited Prosecution pursuant to sections 8(2) of the Occupational Health and Safety Act 2000 No IC 153 of 2008 Inspector John Patton v Fidoto Pty Limited Prosecution pursuant to sections 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 38 1 Bi-Lo Pty Limited pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 and one offence under s 8(2) of that Act. Fidoto Pty Limited pleaded guilty to one offence under s 8(1) of the Act. It was agreed between the parties that the sentence hearings proceed "back-to-back" with Bi-Lo's matters being heard first. Bi-Lo Pty Limited 2 The charges against Bi-Lo involve an incident which took place on 10 February 2006 at Bi-Lo's premises. Bi-Lo at that time operated a retail supermarket business. Fidoto had a contract with a third party, Amcor Packaging (Australia) Pty Ltd, to supply Amcor with re-blocked (one tonne) waste paper and cardboard. Terry Bourke was employed by Fidoto as a truck driver. He loaded and unloaded recyclable materials onto his truck at various locations in the Shoalhaven city area. Three days a week, Mr Bourke picked up bales of cardboard and plastic from Bi-Lo's premises at 14 Burton Street, Vincentia. During the Christmas holidays he performed that task six days a week. William Lynch was employed by Bi-Lo as a storeman at its Vincentia premises. 3 On 10 February 2006, at approximately 8.15am, Mr Lynch was assisting Mr Bourke to load the truck at Bi-Lo's premises. The men were moving plastic bags of packaging plastic and bales of cardboard from the storage area on the side of the dock area onto a material hoist. Once the hoist was loaded Mr Lynch raised the hoist while Mr Bourke reversed the truck into the loading dock. Mr Bourke then climbed up the side of the truck and onto the tray of the truck. Mr Lynch stepped onto the tray of the truck from the hoist. The last side gate to the rear of both sides of the tray of the truck was missing from the truck creating a gap of approximately 2.21 metres wide between the last gate on the truck and the hand railing of the loading dock hoist. 4 Mr Bourke commenced moving bales of cardboard from the hoist onto the tray of the truck. While attempting to move one bale of cardboard off the hoist a bale of cardboard from the right side of the hoist rolled forward, knocking him. He fell some 1.2 to 1.3 metres onto a steel railing that was positioned beside the truck, and then onto the concrete path beside the railing. 5 As a consequence of the incident Mr Bourke fractured his left arm and was off work for approximately four months, returning for three weeks on suitable duties and then returning to pre-injury duties. 6 At the outset of the proceedings, the prosecutor made an application to amend both charges to delete from a particular, the words, "from the tray of his work truck". The particular in its unamended form appears in both charges as follows: On 10 February 2006 Terry Bourke, a truck driver employed by Fidoto Pty Limited (ACN 003 454 617) fell from the tray of his work truck, whilst loading bales of cardboard at the loading dock of the defendant at the premises. At the time Mr Lynch was assisting Mr Bourke. 7 The application to amend was refused. Additional information which prompted the application had first come to the attention of the prosecutor some eight to nine weeks before the present proceedings. No steps had been taken by the prosecutor however to apply to amend the charges before the date of the sentence hearings. Moreover, Bi-Lo's plea of guilty had proceeded upon earlier agreement reached between the parties as to the particular in its unamended form. 8 CCTV footage of the incident was tendered by the prosecutor. That footage, the Court found, showed that at the precise moment when Mr Bourke fell he was positioned on the hoist and then fell diagonally through the gap on the tray of the truck. The issue assumed some significance for the parties. For Bi-Lo it was contended that if the agreed fact was that Mr Bourke fell from the tray of the truck, the primary responsibility for that event lay with Fidoto as the owner of the truck. For the prosecutor, it was contended that the CCTV footage disclosed that Mr Bourke in fact fell from the hoist. 9 As I have found, the CCTV footage revealed something quite different. The real significance in my view is not so much the precise location of Mr Bourke at the time he fell (which, in any event, focuses on the accident), but the risk to safety relied on by the prosecutor to which Mr Bourke was exposed. The risk was described in the Agreed Statement of Facts as follows: The failures as particularised in the amended charge gave rise to a risk of falling from height from the back of the parked truck in the loading dock and from the loading dock hoist because of the gap between the hand railing of the hoist and the rear of the truck. 10 The Agreed Statement of Facts plainly identified the risk to safety as a risk of falling from height either from the back of the parked truck or from the loading dock hoist. The Court proposes to proceed to sentence based on the characterisation of the risk to safety so described in the Agreed Statement of Facts. This approach, I should add, is not inconsistent with the evidence of the CCTV footage. Nor is it inconsistent with the agreed fact that Mr Bourke "fell from the tray of his work truck" since, as the CCTV footage showed, Mr Bourke fell through the gap on the tray of the truck. Systems of work in place at the time of the offences 11 The Agreed Statement of Facts describes in some detail the system in place at the time of the offence for the collection of cardboard bales. Mr Bourke utilised a trolley supplied by Fidoto to move bales of cardboard with the assistance of a storeman (Mr Lynch) from the bale room onto the hoist. Usually some 17 bales were moved at any one time. When the hoist was full of bales, Mr Lynch stood on the hoist in order to raise it from ground level until it was at the same or approximately the same height as the tray of the truck. The hoist was then lowered slightly which dropped the lip of the hoist onto the tray of the truck. Because of the number of bales loaded onto the hoist, a truck driver could not get access to the truck by walking through the hoist. Instead, the driver accessed the tray of the truck by walking through a security door at the side of the loading dock, walking down some stairs, stepping onto the hoist and walking onto the truck. There was a gap of about 2.21 metres between the handrail of the hoist and the rear of Mr Bourke's truck. When Mr Bourke and Mr Lynch stood on the truck they would use the trolley to move the bales of cardboard from the hoist onto the truck. Both workers rolled the bales of cardboard onto an upside down milk crate. The bales were packed in rows on the truck. Mr Bourke used a strap to tie down the bales before driving off. 12 The activity was inherently dangerous because of the 2.21 metre gap which placed Mr Bourke and Mr Lynch at risk of falling through that gap. 13 Bi-Lo had undertaken a risk assessment of the loading dock on 3 February 2005. The risk to safety identified during the assessment concerned the reversing of trucks into the dock area. Various procedures were identified and implemented to obviate that risk. They included the use of traffic lights, the wearing of vests by staff and the re-designing of bollards to prevent the trucks from reversing too far. 14 In 2002, Bi-Lo carried out building works in the loading dock area of its Vincentia store. The project involved the strengthening of existing bollards, the installation of truck warning signage, a weather curtain and automated proximity sensor lights which changed colour from green to orange to red as trucks approached the bollards in the loading dock. 15 Following the completion of the building works in the dock area, Bi-Lo implemented its CML Safety Care System. CML stands for "Coles Myer Limited". At the time of the offences, Bi-Lo was a subsidiary of CML. The CML Safety Care System commenced operation in May 2003. According to Marita Quirk, who was employed by Bi-Lo as a National Health and Safety Advisor, the System consisted of the following components: CML Safety and Injury Management Policy (the Policy); Safety CARE Standards (the Standards); Safety CARE Procedures (the Procedures); Safety CARE Forms and Tools (Forms and Tools). 16 The Policy outlined CML's commitment to the health and safety of team members (Bi-Lo staff), visitors, contractors and demonstrators. The Standards defined and specified the safety requirements necessary to develop and implement CML's safety systems. The Procedures included participation and consultation, hazard management, workplace inspection, safe work practices and personal protective equipment. A hard copy of the Procedures was available to all Bi-Lo staff at the Vincentia store and was also accessible on the intranet. The Procedures also contained a risk reduction plan which was used at the Vincentia store at the time of the offences. Forms and Tools included incident report forms, safe work practices forms, site safety plans, risk assessment forms and health and safety committee agendas. A copy of the site safety plans was also available to Vincentia staff at the store and on the intranet. 17 Safe work practices in force at the time of the offences were both generic and specific. A SWP for the bale press stated, "If equipment is faulty never use it and always report it to the line manager so that an out-of-service tag can be applied and repair arranged." 18 At the time of the offences, Bi-Lo also had a safety committee operating at every store. The Vincentia Safety Committee met monthly and addressed such matters as risk/hazard summaries, spot checklists and corrective action reports of contractors, demonstrators and suppliers, and the progress towards the completion of any required action in the site safety plans. 19 Bi-Lo also provided induction and training for its staff, as well as for contractors. Following completion of the induction for contractors, contractors were required to participate in the CML contractor safety online induction programme. Any contractors who had not completed their induction were refused entry onto any Bi-Lo site. Mr Bourke undertook and completed his induction on 11 June 2005 and was provided with a card containing details of his induction and a signed undertaking that he would undergo a site-specific orientation at any CML site visited by him. CML also sought confirmation from Amcor that its safety system for contractors had been provided to Fidoto. Fidoto contractors were required by CML to hold a CML induction card and carry work method statements. 20 These safety systems and procedures applied to both employees and contractors. They were comprehensive and were implemented by Bi-Lo at its stores, including the Vincentia store, at the time of the offences. Although the risk of a fall from height, which is the subject of the present prosecution, was not identified in the procedures, the systems overall were extensive and impressive and as such operate to mitigate the objective seriousness of the offences. Probable consequences 21 The distance from the hoist and the truck to ground level in the area where Mr Bourke fell was 1.2 to 1.3 metres. It was not contended by the prosecutor that a probable consequence of the breaches of the two sections of the Act was a fatal injury. The consequences I find were nevertheless serious, as evidenced by the serious injury sustained by Mr Bourke as a result of the fall. Whether offences "involved a series of criminal acts" 22 The prosecutor submitted that the Court should take into account as an aggravating factor s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). That section requires a court to take into account the circumstance where the offence involves, "a series of criminal acts". According to the prosecutor each of the failures particularised in the charges are sufficient to separately ground an offence. The charges allege a number of acts which, according to the prosecutor, separately constitute breaches of s 8(1) and s 8(2). In other words, as I understood the way the submission was put, the charges each allege a single offence containing a number of criminal acts that are part and parcel of a single course of conduct. R v Tadrosse (2005) 65 NSWLR 740 was relied upon in support of the submission. 23 For reasons which follow, the submission, in my view, is not sustainable. The charges particularise different aspects of the one breach. They do not allege acts or omissions "rolled up" and demonstrating a single course of conduct. R v Tadrosse was concerned with a series of frauds perpetrated by the offender in order to obtain property. The property was fraudulently obtained by use of false identity documents. Howie J, with whom Grove and Hall JJ agreed, found that the trial judge was in error in taking into account in the sentencing process s 21A(2)(m) as an aggravating factor. The error arose because there were multiple charges before the court for which the offender was going to be sentenced, and the multiplicity of acts of criminality (as well as the multiplicity of victims) was properly addressed by reference to the principle of totality. It followed that it was illogical to also take into account as an aggravating factor, relevant to each offence, the fact that there was a series of criminal acts disclosed by those offences: at [28]. 24 The present charges, in contrast, particularise different conduct charged as one offence. Particular 4 of No IC 150 of 2008, for example, focuses on the failure to assess any risks, with regard to loading the bales of cardboard. Particular 7 focuses on the failure to instruct, inform, train and supervise on how to perform the task of loading the bales safely. Particular 5 deals with the failure to provide a safe system of work for avoiding falls from trucks. Particular 6 is concerned with the failure to provide a safe system of work for avoiding falls from the loading dock hoist. The different acts or conduct may be referable to the same factual background, but they cannot be said to constitute in combination one activity or one single course of conduct. The approach to charging by the prosecutor is only permissible because of s 31 of the 2000 Act, so long as "multiple contraventions" can be said to arise out of the same factual circumstances. Reasonable foreseeability 25 The risk to safety which was the risk of a fall from height was both obvious and reasonably foreseeable when regard is had to the gap of 2.21 metres between the handrail of the hoist and the rear of the truck. No fall protection measures were in place. As earlier observed, Bi-Lo's procedures had failed to identify the risk. Remedial measures available at time of offences 26 Following the accident, Bi-Lo instructed Fidoto to ensure that all side gates of its trucks were fitted in place on the truck when they arrived at the Vincentia store. Risks assessments were also undertaken by Bi-Lo for loading bales of cardboard and plastic onto the truck. An engineering control was implemented at the loading dock to address the risk of a fall from height. This control was the installation of metal racking behind the bollards installed at the loading dock. It operated to close the gap between the edge of the railing of the hoist and the roller door. The height of the bollards was also increased. 27 It has not been suggested by Bi-Lo that these post-accident measures were time-consuming, complex or costly. They represent therefore the type of measures that could have been readily implemented at any time prior to the offences. This finding adds to the objective seriousness of the offences. Deterrence 28 Falls from height are notoriously prevalent at worksites. They invariably result in serious injuries and often fatalities. I adopt the comments I made in the context of the application of general deterrence to offences involving falls from height in Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103 at [11] where I said: The circumstances of these matters exhibit a strong case for general deterrence. Mr Murdock was exposed to a serious risk to his safety because he was required to work on top of scaffolding at a height of some five metres. The risk to safety was compounded by the failure on the part of both defendants to provide Mr Murdock with any fall protection device or to devise some procedure or work method that would have ensured that Mr Murdock could carry out his work safely. Falls from heights at construction sites happen with alarming regularity and often result in serious or even fatal accidents. In most cases such accidents are easily avoidable and require only relatively simple measures to work out a procedure that will keep workers safe. Employers on construction sites should also be made aware that they all share equally the responsibility for ensuring the safety of persons at work sites. If for example the principal contractor has a practice of inducting all workers who enter the site then subcontractors also working at the site with those workers should ensure that they have been properly inducted before work commences. It has been emphasised many times in this jurisdiction that an employer cannot delegate its responsibilities to ensure a safe work place and ensure workers' safety. This is especially important to understand in the context of a typical construction site at which may be found a large and diverse workforce consisting of a principal or head contractor, any number of specialists contractors and labour hire personnel. Working at heights is a potentially dangerous activity and it is imperative that employers take adequate measures to ensure their workers can work above ground safely and without fear of injury. 29 Specific deterrence is also relevant. Bi-Lo, the Court was informed, continues to be an employer and operate in the retail supermarket industry. These matters without more compel the Court to take the principle into account on sentence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. Subjective Factors 30 Following the incident, Bi-Lo implemented a number of safety measures, to which reference has already been made. In addition, Bi-Lo requested Fidoto to collect bales six days a week with a direction that only one level of bales be loaded onto the truck at any given time. Bi-Lo has also issued an instruction that none of its staff are to assist the Fidoto drivers to load the truck with bales of cardboard. 31 According to the prosecutor, Bi-Lo pleaded guilty to the charges during a seventh directions hearing before the Court. Nevertheless, the prosecutor contended that the pleas of guilty manifested a significant utilitarian benefit warranting a discount of penalty in the upper range, namely, 10 per cent to 25 percent. Material tendered by Bi-Lo during the sentence proceedings disclosed that it had entered into a protracted series of negotiations with the prosecutor with a view to entering pleas of guilty. Further particulars were sought by Bi-Lo and a response received. The result of the negotiations was that the prosecutor on 28 November 2008 handed to the Court amended charges. At the same time, Bi-Lo formally entered pleas of guilty to those amended charges. 32 In these circumstances, it is appropriate to award a discount of 25 per cent for the utilitarian benefit derived from those pleas of guilty. 33 As a separate consideration from the utilitarian value of the pleas, Bi-Lo is also entitled to leniency in recognition of the remorse shown by the pleas of guilty. 34 Bi-Lo has two previous convictions. Some information about these two previous convictions was volunteered by Bi-Lo, as set out in Ms Quirk's affidavit. Ms Quirk said on the issue: Bi-Lo has two prior convictions, under the Occupational Health and Safety Act 1983 (NSW). These prior convictions did not involve the loading of bales of cardboard onto trucks but rather arose from incidents involving manual handling. The proceedings for the prior convictions were heard in the Chief Industrial Magistrate's Court. The details of the prior convictions are: On 5 April 2000 Bi-Lo was convicted of failing to provide adequate training in manual handling techniques necessary to ensure health and safety at work of an employee at the Killarney Vale store. Bi-Lo was fined $4,000. On 4 October 2000 Bi-Lo was convicted of failing to provide adequate instruction and training regarding safe manual handling techniques in unloading boxes of goods from pallets and trolleys when moving stock from the warehouse floor to the store area at the Tamworth store. Bi-Lo was fined $6,000. 35 In reliance on the information provided by Bi-Lo, the prosecutor submitted that it was of "particular significance" that Bi-Lo had two prior convictions involving breaches with respect to, "failures to provide adequate training in safe manual handling techniques". The prosecutor also advanced the proposition (without further elaboration) that, "the record may either deprive the defendant of leniency or indicate that more weight is to be given to retribution, specific deterrence and protection of the community." 36 The common law approach to the use of prior convictions by a sentencing court was set out by the High Court in the well-known passage in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477-8, per Mason CJ, Brennan, Dawson and Toohey JJ (formal parts omitted): ... 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. 37 Under s 21A(2)(d) of the CSPA, a record of prior convictions is said to be an aggravating factor to be taken into account in determining the appropriate sentence. The provision however needs to be read in conjunction with s 21A(4) which provides: The Court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. 38 In R v McNaughton (2006) 66 NSWLR 566, Spigelman CJ, with whom McClellan CJ at CL, Grove, Barr and Bell JJ agreed, held that the aggravating factors set out in s 21A(2) were intended to encompass both subjective and objective considerations, as that distinction has been developed at common law (at [34]). The judgment is also authority for the proposition that the reference to prior convictions (in s 21A(2)(d) of the CSPA) should be interpreted, "as referring to the use of that consideration in the ways authorised expressly in Veen v The Queen (No. 2)" (at [32] per Spigelman CJ). 39 The observations of Johnson J in R v Walker [2005] NSWCCA 109 at [32] should also be borne in mind in considering this issue. His Honour observed that sentencing judges must make clear the precise manner in which an offender's record has been taken into account. 40 Returning to the present proceedings the prosecutor's submission appeared to rely in particular on that part of the passage in Veen (No. 2) extracted above where it was said that an offender's prior history is relevant to show, "whether the offender has manifested in his commission of the instance offence a continuing attitude of disobedience of the law". According to Veen (No. 2), where this has been established, the principles of retribution, deterrence, and protection of society may all indicate that a more severe penalty is warranted. 41 Two observations may be made about the prosecutor's submission. First, it is the duty of the prosecutor (not a defendant) to place before the Court all appropriate and relevant material touching on sentence, including a defendant's prior convictions: R v Gamble (1983) 3 NSWLR 356 at 395 per Street CJ. It follows from this that if the prosecutor wishes to rely on material adverse to the defendant to support a submission that the offence manifests a continuing attitude of disobedience, it is incumbent upon the prosecutor to produce this material in his own case. Apart from bringing to the Court's attention the fact that Bi-Lo had two prior convictions, no appropriate material was produced by the prosecutor in support of the submission. Secondly, the prosecutor's purported reliance on the background provided by Ms Quirk to the prior convictions is misplaced. According to Ms Quirk's brief summary, the prior convictions arose from "incidents involving manual handling". What this meant precisely was not the subject of further elucidation. The generality of the information does not provide a proper basis upon which the Court can give due consideration to whether the present offences manifested a continuing attitude of disobedience of the law. 42 The Court therefore does not propose to take into account Bi-Lo's prior convictions on the basis that they operate to render the present offences more serious. They do, however, operate to preclude the Court from extending leniency otherwise available to a defendant with no prior convictions. 43 The prior convictions are, of course, also relevant to fixing the maximum penalty under s 12 of the Act. Bi-Lo, a corporate defendant with prior convictions, faces a maximum penalty under the section of $825,000. 44 On behalf of Bi-Lo, Ms Quirk also expressed sincere regret for the circumstances of the accident which resulted in an injury to Mr Bourke and placed Mr Lynch at risk of injury. The measures put in place following the accident, attest to an acknowledgement on behalf of Bi-Lo of responsibility for its actions. Bi-Lo also co-operated with WorkCover during its investigation of the incident. 45 These matters will be taken into account in mitigation of the penalties to be imposed. Penalty 46 In determining penalties for Bi-Lo I have taken into account the objective seriousness of the two charges arising out of the incident involving Mr Bourke and Mr Lynch on 10 February 2006. In addition, I have taken into account the maximum penalty, prior convictions, and other subjective factors. Those factors have also been considered by reference to the CSPA, in particular, s 21A. Totality 47 The charges, the subject of the incident of 10 February 2006, arose out of the same factual circumstances. I consider that a fine in relation to each charge of $90,000 is appropriate in the circumstances. Taking into account the principle of totality, I consider that a total fine for both charges should be $90,000, that is, $45,000 for each charge. These amounts properly reflect the criminality of Bi-Lo. Fidoto Pty Limited 48 The charge under s 8(1) of the Act against Fidoto arose out of the incident on 10 February 2006 at Bi-Lo's Vincentia store. The particulars of the amended charge differ in some respects from the charges against Bi-Lo. One difference appears in particular 3 of the charge against Fidoto which alleges that Mr Bourke "fell from the loading dock hoist of the premises" while loading bales of cardboard at the loading dock at the premises. Both the Bi-Lo and the Fidoto charges particularise failures to provide a safe system of work to ensure workers were not at risk of falling from trucks parked in the loading dock and from the loading dock hoist because of a gap between the hand railing of the hoist and the rear of the truck. 49 The facts agreed between the parties are substantially the same as the facts agreed between the parties in the Bi-Lo matter. I adopt in these sentencing reasons those agreed facts insofar as they are in the same terms as those tendered in the proceedings against Bi-Lo. 50 Part of the agreed facts in the present matter state that shortly before the incident, Mr Bourke had removed the last side gate to the rear of the tray of the truck because there was no room for him on the hoist. Mr Bourke, according to the agreed facts, fell backwards from the edge of the hoist and landed on the concrete path below. 51 At the time of the incident, the usual bale press in the storeroom had been removed, and a replacement bale press installed. Because the replacement bale press did not have a rear window and indicator (unlike the earlier press) Bi-Lo's employees continued pressing the cardboard resulting in larger and heavier bales. Systems of work prior to offence 52 The system of work with regard to the loading of cardboard bales which was in place at the time of the offence at the Vincentia store has been set out in detail in the sentencing reasons for Bi-Lo. I adopt those details in these sentencing reasons insofar as they reflect in identical terms the facts agreed between the prosecutor and Fidoto in the present proceedings. 53 According to the agreed facts, Fidoto did not undertake a risk assessment for the task of loading and unloading bales of cardboard onto the truck. Nor was Mr Bourke provided with any information on how to perform the procedure. Instead, the system of loading was left up to the truck driver and the Bi-Lo storeman. The system of loading was passed on from driver to driver. Mr Bourke received weekly instructions from his supervisor but those instructions were limited to what waste depots he was to visit and the loads he was to pick up. Mr Bourke's supervisor was, in any event, on holidays at the time of the incident. In his absence, no one directly supervised Mr Bourke. He organised his own hours based on previous experience. Mr Bourke had received some general training on generic manual handling techniques. He had not received any training in relation to the handling of bales of cardboard. 54 There was also no consultation between Fidoto and Mr Bourke with regard to the loading processes for bales of cardboard. Before the incident, Mr Bourke weighed the bales of cardboard at Fidoto's Bomaderry premises and found that they each weighed approximately 110 kgs. The average weight of a bale prior to that was apparently 96 kgs. On the day of the incident, he noticed that the bales at the Vincentia store were larger and heavier. This was because the replacement bale press referred to earlier had no pressure regulator switch. Mr Bourke, presumably as a means of compensating for this deficiency, weighed the bales himself for the ultimate purpose of preventing an injury. 55 Mr Bourke's truck had a vehicle loading crane but it could not be used at the loading dock because of the roof. A sling could not be used to facilitate the loading of the bales because, according to the agreed facts, the string securing the bales had a tendency to break causing the bales to fall apart. A sling could only be used if the bales were pushed up on blocks. No other mechanical aids were available. Other companies apparently used a forklift truck (FLT) to load the bales. Mr Bourke had proposed the use of a FLT to load the bales at Bi-Lo's Vincentia store. Bi-Lo however did not have one available. The absence of any mechanical aids meant that Mr Bourke was forced to resort to manually handling the bales in order to load them. With regard to the apparent increasing size and weight of the bales, both Mr Bourke and Mr Lynch had raised the problem of overloading the bales with Glenn Smith, Bi-Lo's store manager at the Vincentia store. Mr Smith did not however take any action to address the problem. Fidoto, more significantly, was aware of the problem. It sought to meet the problem by instructing Mr Bourke not to load the bales by himself. 56 Mr Bourke could not access the tray of his truck from the loading dock hoist. Instead, he used a milk crate to access the truck's tray. According to the agreed facts, this exposed Mr Bourke to a fall of approximately 1.2 metres from the tray of his truck to the loading dock floor. A practice among other drivers was to stand on the bollard that protected the loading dock from a reversing truck. Once on the bollard, drivers then swung around the end of the gate of the tray of the truck. The bollard was loose however with the result that a risk was created, to drivers standing on the bollard, of falling about three metres to the floor. 57 Fidoto had not conducted an inspection of the loading dock. 58 The agreed facts summarised above attest to a number of deficiencies in Fidoto's systems with regard to the procedure of loading and unloading bales of cardboard at the Vincentia store. In combination they facilitate a conclusion that the offence was serious. Reasonable foreseeability of risk to safety 59 In addition, the risk to safety, which was a risk of a fall from height, was reasonably foreseeable when regard is had to the gap of 2.21 metres between the tray of the truck and the hand rail of the hoist. No fall protection measures were in place. Moreover, Fidoto appeared to be aware of the risk and had taken a number of steps in an attempt to address it. Mr Bourke had, for example, requested without success, the use of a forklift. According to Arthur Wilson, Fidoto's managing director, he had been informed before the incident that the bales of cardboard at the Vincentia store had been getting heavier because of the replacement baler (for reasons earlier explained). Mr Wilson said that Mr Bourke had been given a direction by Fidoto's health and safety manager not to load the heavier bales unless he received assistance to load the bales from Bi-Lo. Mr Bourke was also instructed that if no assistance was forthcoming he was to leave the bales at the store without loading them. Mr Wilson said that he was aware that Mr Bourke had on one occasion adhered to the instruction when assistance had not been forthcoming. 60 Mr Bourke also gave a written statement which was tendered in the present proceedings. He said that the loading dock at the Vincentia store was difficult for the truck to access. The dock commenced below ground level and the bollards by their presence limited the ability of the truck to reverse so that the tray of the truck was flush with the loading dock. He said it was the inability to have the tray flush with the loading dock that created the gap which in turn required persons working from the truck to take care where they placed their feet because of the danger of slipping or falling between the gap. Mr Bourke expressed his concerns as to this state of affairs to Bi-Lo but not to Fidoto. No explanation was advanced for this latter omission apart from the fact that it was Mr Bourke's view that because the dock belonged to Bi-Lo, it was up to Bi-Lo to provide him with a safe system of work. 61 Mr Bourke's view is, of course, not an accurate reflection of the law which requires both Fidoto and Bi-Lo in the circumstances to have taken appropriate steps to ensure Mr Bourke's safety with regard to the work he was undertaking at the loading dock. 62 These facts suggest that the subject risk was not only foreseeable, but in fact was foreseen by Fidoto. Ordinarily, this would result in a finding that the objective seriousness of the offence was exacerbated by the presence of actual foresight on the part of a defendant. In Fidoto's case, however, it had made a number of attempts, although they were not successful, and were arguably inadequate, to address the risk. This matter mitigates to a substantial degree the finding that foresight on the part of Fidoto exacerbated the objective seriousness of the offence. Probable consequences 63 The distance from the hoist and the truck to ground level in the area where Mr Bourke fell was 1.2 metres to 1.3 metres onto concrete. Although it has not been contended by the prosecutor that a probable consequence of the breach of s 8(1) was a fatality, the serious injuries to Mr Bourke necessitate the finding that the probable consequences arising from the breach were serious. 64 All of these matters which attest to the objective seriousness of the offence fall to be considered in the context of the prevailing safety system in place prior to the offence. Systems of safety in place prior to offence 65 Mr Wilson, in an affidavit, outlined the training courses undertaken by Mr Bourke at Fidoto's expense. Mr Bourke, for example, obtained his WorkCover OH&S General Induction card on 11 July 2005. He also undertook a general construction induction which included manual handling at Fidoto's premises. The course was an accredited course conducted by a TAFE teacher. Mr Bourke was required by Fidoto to undertake and successfully complete the course. 66 From August 2002 until July 2008, Darryl Rodney was Fidoto's occupational health and safety manager. During his employment with Fidoto, Mr Rodney set up procedures and policies which included employee training programmes, management plans, safety reviews of workplaces and the development of environmental safety plans for hazardous industries in which Fidoto operated at various waste centres throughout the Shoalhaven shire. 67 Prior to 10 February 2006, Fidoto utilised an incident injury report form. The form was first developed in February 2003 and was used to complete the details of Mr Bourke's accident. All employees also received a work induction at Fidoto's Bomaderry site. The induction covered Fidoto's occupational health and safety policies and procedures which included hazard reporting, incidents and injuries. Employees were also informed of such matters as names of fire wardens, first aid officers and OH&S representatives. The induction also covered the contents of a personnel manual. The manual contained information about leave, uniforms, hours of work and employment conditions. Following the work induction new employees were taken to the work site where they were to commence work and given a site induction by the site manager. The site induction dealt with the locations of safety equipment, first aid kits, emergency exits, as well as introducing new employees to the first aid person, the fire warden and the OH&S representative. After the site induction, the new employees were given a plant machinery job induction which covered events at the work site and training in job safety analysis (JSA) and safe work method statements (SWMS). 68 In July 2003, Fidoto established OH&S representatives with one representative from each of the company's divisions. Employees were encouraged to take issues to their respective representatives. The representatives met monthly to discuss the issues raised by the employees and to instigate appropriate action and any "follow-up" action. Fidoto also issued a monthly newsletter addressing occupational health and safety issues. Managers were also encouraged to have weekly toolbox meetings with employees to address any emerging safety issues at the work site. 69 All training was arranged on a monthly basis by Mr Rodney. Apart from induction training, the employees also received training in asbestos awareness, spill response, complaint resolution, manual handling and customer service. Fidoto also developed SWMSs for its vehicles, plant and machinery. A JSA was completed for all work undertaken by an employee, on and off the work site. 70 These procedures are comprehensive and attest to Fidoto's genuine commitment to occupational health and safety. They will be taken into account in mitigation of the objective seriousness of the offence. Remedial steps available prior to the offence 71 With regard to whether there were available to Fidoto simple remedial steps with which to address the risk at Bi-Lo's loading dock in Vincentia on 10 February, some of these measures have been referred to above. They include the instruction to Mr Bourke not to load the bales unless he had the assistance of Bi-Lo. This assistance was forthcoming in the form of Mr Lynch. In the circumstances, it was not adequate and had the unintended result no doubt of placing Mr Lynch at risk of falling. I make this observation based on the agreed facts which included the fact that Mr Lynch was rendering assistance to Mr Bourke during the loading of the truck. It is open to the Court to infer that Mr Lynch, by reason of his location and the activities he was performing on the loading dock hoist and on the truck while the bales were being loaded, was also at risk of falling. 72 Following the incident, however, Mr Rodney from Fidoto, in consultation with CML and Amcor, developed a new system of work at Bi-Lo's Vincentia store whereby bales were loaded onto the truck on a single level only and the truck run was to be completed six days a week instead of three. Drivers were also given access to the tray of the truck from the hoist of the loading dock. Fidoto also implemented a company policy that side gates and rear swing gates were to remain fitted to all trucks. Prior to this, the new gates of the trucks were removed so that the trucks could reverse into the loading dock at the time of Mr Bourke's accident two rear gates from the truck had been removed facilitating the gap which in turn gave rise to the risk of falling. 73 These matters, many of which appear to be effective in addressing the risk to which Mr Bourke was exposed on 10 February, would have been, in the absence of any explanation to the contrary, readily available measures or steps which could have been taken by Fidoto before the incident. This finding adds to the objective seriousness of the offence. Deterrence 74 With regard to the principle of general deterrence, I adopt in these sentencing remarks my observations and findings made in the Bi-Lo proceedings. 75 Specific deterrence must also be taken into account. According to Fidoto, the extensive post-incident safety regime it has implemented has "effectively eradicated" the prospect of the further exposure of Fidoto workers to the type of risk to which Mr Bourke was exposed. Accepting that this may be the case, it would not dispense with the requirement to take the principle into account in the present circumstances. This is because, according to Mr Wilson, Fidoto remains in operation in the industry. It retains a substantial workforce, including eight contractors and its business extends over a number of activities, including waste depot management, transport and processing of recyclable materials, engineering and administration. A small component of the penalty to be imposed will therefore reflect the application of the principle. Subjective Factors 76 The post-incident measures have been addressed. In addition, Fidoto made a number of enquiries in an effort to obtain information about the incident. The purpose of the enquiries was to address remedial measures in order to obviate the risk. On 14 February 2006, Fidoto developed a JSA for the Bi-Lo store at Vincentia. Toolbox meetings were also held and new safe loading procedures discussed, and later implemented. 77 Mr Wilson, in his affidavit, commented that he had seen the CCTV footage of the incident. It showed, he said, that Mr Bourke fell from the lip of the loading dock hoist, not the truck. Mr Wilson concluded, therefore, that Mr Bourke's fall would not have been prevented if the side gates had been fitted to the truck. 78 The CCTV footage was not tendered during the present proceedings. In any event, consistent with remarks I made in the Bi-Lo proceedings, the focus on the precise location of Mr Bourke when he fell concentrates on the accident, not the risk of falling. According to the agreed facts between the prosecutor and Fidoto, because Mr Bourke could not access the tray of his truck from the loading dock hoist, he used a milk crate to access the truck's tray and this in turn "exposed Mr Bourke to a fall of approximately 1.2 metres from the tray of his truck to the loading dock floor". The agreed facts indicate, that Mr Bourke was at risk of falling either from the tray of the truck or from the loading dock hoist, and I so find. 79 The remedial steps therefore undertaken by Fidoto which included the direction not to remove the side gates of the truck were effective in obviating the relevant risk to safety. This matter will be taken into account in mitigation of penalty. 80 Fidoto entered a plea of guilty to the charge at the same time as Bi-Lo entered its pleas of guilty, that is, at the seventh directions hearing. The prosecutor submitted that Fidoto's plea of guilty manifested a significant utilitarian benefit which warranted a discount of penalty in the "upper range", that is, between 10 and 25 per cent. 81 I propose, after taking into account the prosecutor's submissions on the issue, to award a discount of penalty of 25 per cent in recognition of the utilitarian value of the plea. 82 Fidoto has one prior conviction under the Occupational Health and Safety Act 1983. The maximum penalty for the breach of the present charge is therefore $825,000. The prior conviction operates to prevent the Court from extending leniency otherwise available to a defendant with no prior convictions. 83 Fidoto also offered assistance to Mr Bourke and his family following the accident. Mr Rodney and Karen Rourke, Fidoto's human resources officer, attended the hospital where Mr Bourke had been admitted shortly after the accident. Mrs Bourke, Mr Bourke's wife, was also offered assistance. Ms Rourke visited Mr Bourke in hospital several times on behalf of Fidoto. Work plans were formulated in order to accommodate Mr Bourke's anticipated return to Fidoto's workplace. Mr Bourke eventually returned to work under a work plan that was constantly reviewed and updated by Ms Rourke to take into account Mr Bourke's programmed return to pre-injury duties. 84 Mr Wilson, in his affidavit, described Mr Bourke as a valued and trusted employee. On behalf of Fidoto, Mr Wilson expressed deep regret for the fact that Mr Bourke had been injured and he emphasised the firm resolve by Fidoto's Board to ensure all measures would be taken in order to ensure the circumstances of the incident would not be repeated. He said that the incident had prompted Fidoto to re-assess its policies and procedures. Fidoto, he said, realised that its management must remain vigilant in protecting the health and safety of its employees and others at its workplaces. These matters will be taken into account in Fidoto's favour under s 21A(3)(i) of the CSPA. 85 As a separate consideration from the utilitarian value of the plea, Fidoto is also entitled to leniency in recognition of the remorse shown by the plea of guilty. Respective roles 86 The prosecutor contended that the penalties to be imposed on Bi-Lo and on Fidoto, "would be the same irrespective of where the worker fell". The submission highlights an inconsistency in the two matters with regard to the precise location of Mr Bourke immediately before he fell. The evidence in the Bi-Lo matter indicated that Mr Bourke was positioned on the hoist and fell diagonally through the gap on the tray of the truck. The evidence in the Fidoto matter indicated that Mr Bourke was on the hoist and fell from the lip of the hoist to the floor below. 87 Fidoto in particular sought to rely on the evidence in its sentencing proceedings in advancing the submission that its conduct did not merit the gravity of the conduct of Bi-Lo and that this should be reflected in the penalties imposed. According to Fidoto, the premises upon which Mr Bourke was injured was owned and effectively controlled by Bi-Lo, and the hoist from which Mr Bourke fell was under the care, control and ownership of Bi-Lo. It was put on behalf of Fidoto in relation to the issue, that the method of loading the bales, "without the assistance of Bi-Lo's workers", and the weight of the bales were matters beyond the control of Fidoto. Fidoto, it was contended, requested additional manual assistance from Bi-Lo but Bi-Lo did not participate in the request for co-operation. It was at the same time conceded by Fidoto that it should have taken, "more pro-active steps in meeting the resistance by Bi-Lo to not co-operate with the loading operation and to enforce on Bi-Lo its concerns with respect to the weight of the bales." 88 Fidoto's latter submission with respect to the claimed lack of assistance provided by Bi-Lo is not supported by the evidence. The agreed facts clearly indicate that Bi-Lo did provide assistance in the loading operation in the form of Mr Lynch, an employee of Bi-Lo. According to the agreed facts, at the time of the accident Mr Lynch was assisting Mr Bourke to load the truck with the bales of cardboard. As for the weight of the bales Fidoto was aware of the problem and had sought to address it by instructing Mr Bourke not to load the bales by himself. This last-mentioned instruction by Fidoto reveals that, contrary to the submission made on its behalf, the issue of the weight of the bales was not beyond Fidoto's means to address it. According to Mr Wilson, after Mr Bourke received the instruction he did not on at least one occasion load the bales because he could not get any assistance. 89 As to the location of Mr Bourke at the time of the accident, I repeat my earlier observations that the precise location of Mr Bourke at the time of the accident focuses (impermissibly) on the accident. The correct focus is on the relevant risk or risks to safety: South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [41]-[44]. Again, it was an agreed fact that because Mr Bourke could not access the tray of his truck from the hoist he used a milk crate to access the truck and this in turn was said to expose him to a risk of falling from the tray of his truck. In addition, Fidoto pleaded guilty to allegations of unsafe systems which placed Fidoto's employees at risk of falling from trucks parked in the loading dock, as well as from the loading dock hoist. The relevant risk to safety therefore was the risk of falling from height either from the trucks or from the loading dock hoist. This was the same risk arising from the various failures particularised in the charges to which Bi-Lo entered its pleas of guilty. 90 Bi-Lo may have owned the premises, including the loading dock hoist and Fidoto may have owned the truck on which Mr Bourke and Mr Lynch were loading the bales, but the relevant risk to which the workers were exposed arose from their respective locations on either the truck or the hoist. These facts without more would facilitate the conclusion that the respective culpabilities of both defendants were equal. Both defendants had equal and attendant responsibilities towards Mr Bourke (as well as Mr Lynch) to ensure his safety while he undertook the work on 10 February 2006. 91 On behalf of Bi-Lo it was contended that Fidoto had the primary responsibility for ensuring that the rear gates on the truck (which had been earlier removed) were secured so that Mr Bourke would have been prevented from falling from the tray of the truck. Again, the submission focuses on the accident not the relevant risk to safety. It does not follow from Bi-Lo's contention therefore that Fidoto's culpability was greater than Bi-Lo's culpability because Fidoto owned the truck. The relevant risk to safety contemplated either a fall from the truck or from the hoist. 92 Bi-Lo relied on a judgment of Marks J in WorkCover Authority of NSW v DHL Exel Supply Chain (Australia) Pty Ltd; WorkCover Authority of NSW v McGill Holdings Pty Ltd; WorkCover Authority of NSW v DTC Pty Ltd [2007] NSWIRComm 14 in which his Honour found that the charge brought against DTC was confined to a failure to control a risk to safety which had previously been identified. This factor alone did not warrant, his Honour said, a finding that the offence was, "less than serious". Other factors however persuaded his Honour that DTC's culpability was less than that of its co-defendants. Those other factors included DTC's actions in directing the drivers not to climb onto a trailer and the fact that the injured person had substantial experience within the industry and had received training and instruction in connection with occupational health and safety matters. 93 It has not been contended by Fidoto and Bi-Lo that Mr Bourke, also an experienced worker who had received induction training in connection with safety matters from both Fidoto and Bi-Lo, contributed in some way to the circumstances of the offences with which both defendants have been charged. On the contrary, Mr Bourke informed Fidoto of the problem associated with loading the bales. Fidoto had sought the assistance of Bi-Lo and Bi-Lo had provided assistance in the form of Mr Lynch. 94 Given these matters, the only reasonable conclusion is one consistent with a finding that the respective culpabilities of both Fidoto and Bi-Lo are the same. Orders 95 The Court makes the following orders: (1) In No. IC 150 of 2008, Bi-Lo Pty Limited is convicted of the offence and fined $45,000 with a moiety to the prosecutor. (2) In No IC 151 of 2008, Bi-Lo Pty Limited is convicted of the offence and fined $45,000 with a moiety to the prosecutor. (3) In IC Nos 150 and 151, Bi-Lo Pty Limited is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement as assessed. (4) In IC No 153 of 2008, Fidoto Pty Limited is convicted of the offence and fined $90,000 with a moiety to the prosecutor. (5) In IC No 153 of 2008, Fidoto Pty Limited is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement as assessed. ___________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.