Industrial Court of New South Wales CITATION: Morrison v Perilya Broken Hill Limited [2007] NSWIRComm 115 PROSECUTOR: Rodney Morrison PARTIES: Department of Primary Industries (formerly Department of Mineral Resources) DEFENDANT: Perilya Broken Hill (ACN 099 761 289) FILE NUMBER(S): 6864 of 2004 CORAM: Marks J CATCHWORDS: Occupational Health and Safety Act 2000 s8(1) - death of employee - guilty plea at earliest opportunity - deficiencies in defendant's procedures in operation of the cage - strong commitment to occupational health and safety matters - awareness of need to comply with obligations to employees created by the Act - assessment of objective seriousness of the offence - deterrent effect of penalties - comprehensive steps taken to ensure incident is not repeated - cooperation with prosecutor in investigations - expression of remorse and contrition - no prior convictions for OH&S breaches - penalty imposed LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 HEARING DATES: 14 August, 7 December 2006, 10 May 2007 DATE OF JUDGMENT: 8 June 2007 PROSECUTOR Mr P Strickland SC Mr D O'Neil of counsel SOLICITORS: Crown Solicitors Ms J Burton LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson SC Mr M Shume of counsel SOLICITORS: Sparke Helmore Ms J Flitcroft JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 8 June 2007 Matter No IRC 6864 of 2004 Rodney Morrison v Perilya Broken Hill Limited (ACN 099 761 289) Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 115 1 The prosecutor, Rodney Morrison, has charged the defendant, Perilya Broken Hill Limited ("Perilya") with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The charge and particulars are contained within an amended application for order which is in the following terms: I, RODNEY MORRISON, Director, Mine and Forest Safety Performance, of the Department of Primary Industries empowered under Section 106 of the Occupational Health and Safety Act 2000 and by the consent given to me by the Director General of the Department of Primary Industries to institute proceedings in the within matter allege that PERILYA BROKEN HILL LIMITED (ACN 099 761 289), a Corporation whose registered office is situated at Level 2, 31 Ventnor Ave, West Perth, Western Australia, 6005 ("the Defendant") being an employer, on 28 November 2002 at the Perilya Broken Hill Mine, a place of work, situated at Wentworth Road, Broken Hill in the State of New South Wales failed to ensure the health, safety and welfare at work of all its employees, and in particular, Darren Andrew, contrary to Section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: A. The Defendant failed to ensure that the premises controlled by the Defendant were safe and without risk to health in that a nip point was created by the plat extension or protrusion and the cage drop bar (referred to as a "safety bar") in the NBHC service shaft at the Perilya Broken Hill Mine ("the mine"). Persons riding in the cage were exposed to this nip point when the cage was moving and the cage door was open. B. The Defendant failed to have in place any or any appropriate system for ensuring that only employees competent to so do operated the cage in the NBHC service shaft at the mine. C. The Defendant failed to adequately instruct and inform employees (including Darren Andrew) so that they knew which employees were competent to operate the cage. As a result of the said failures Darren Andrew's safety was placed at risk and he was killed. AND I hereby apply for the issue of an order requiring the said PERILYA BROKEN HILL LIMITED (ACN 099 761 289) to appear before the Industrial Relations Commission of New South Wales in Court Session in answer to the said charge. 2 The defendant pleaded guilty to the charge and the particulars. Accordingly, this judgment is concerned only with the imposition of a monetary penalty. The maximum penalty is $550,000. 3 An agreed facts document became evidence in the proceedings. It is in the following terms: Background 1. The Prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and is empowered under s.106(1)(c) of the Act to institute proceedings in this matter. 2. Perilya Broken Hill Limited (ACN 099 761 289) ("Perilya") is a body corporate and can be sued by its corporate name. 3. On 31 May 2002 Perilya took control of the Perilya Broken Hill Mine ("the mine") acquiring it from the administrators (John Spark and Peter McClusky) for Pasminco Aust Ltd (ABN 23 004 074 962) and Pasminco Broken Hill Pty Limited (ABN 40 000 005 774). The mine was (and remains) situated at Wentworth Road, Broken Hill in the State of New South Wales and was (and remains) a place of work. 4. Perilya is a wholly owned subsidiary of Perilya Limited (ACN 009 193 695). At all times Perilya received the proceeds from the sale of the minerals produced at the mine through carrying out mining and treatment of ore to produce zinc and lead concentrates for shipment and sale. 5. Perilya was the owner and operating company of the mine at all relevant times. 6. Furthermore, Perilya owned the buildings and fixed plant at the mine at all relevant times and retained direct responsibility for the overall running and operation of the mine at all relevant times. 7. When Perilya took over control of the mine the shaft known as the NBHC Service Shaft was serviced by two cages (travelling vertically in the shaft and arranged so that one cage descended as the other was raised). At all material times the cage referred to as the south cage ("the cage") was used to transport persons. 8. When Perilya recommenced operation in June 2002, it employed former Pasminco employees, persons with mining experience outside of Broken Hill and persons with no mining experience. THE WORKINGS OF THE SHAFT 9. The cage had two decks, weighed 7750 kg and travelled within the 6100mm diameter of the circular shaft. 10. The cage was lowered and raised by an electrically powered double drum winder. 11. The cable attached to the cage wound around one of the winder's two drums. 12. A winder driver ("the winder driver") was situated in a winder driver cabin on the mine surface. 13. The winder driver had two depth indicators consisting of rotating drums mounted on a control panel. Each depth indicator identified to the winder driver where the corresponding cage was in the shaft. Marks on the depth indicators together with additional marks on the winder drums allowed the winder driver to bring the cage to a stop with the floor of the cage within centimetres of the plat surface. The depth indicators and the marks on the winder drums were visible to the winder driver. 14. The person operating the cage ("operator") communicated with the winder driver in three ways. 15. The first was a telephone located near the plat on each level. 16. The second was by use of bells (wiggins) situated at each plat level. There was a designated signalling system so that the driver could tell where the operator wanted to go to by the number of bells rung and the sequence in which they were rung. 17. The third was via an "e-cam" system inside the cage ("the e-cam"), which allowed both voice communication system and the use of the "code of signals" by way of a buzzer operated by a button on the e-cam unit. 18. Historically, during the cage's life, since 1950 Pasminco had ordinarily used permanent platman to operate the cages from within and communicate with the driver situated on the surface. Over time permanent platman were not used by Pasminco on nightshift. 19. When Perilya recommenced operations it continued the Pasminco system of not using full time platmen on night shift. It did not use permanent platmen on day shift. THE CAGE AND ITS OPERATION 20. The cage was used to carry equipment or men. Fully laden, it could carry up to 40 men in each deck, being 80 men in total. The cage doors opened onto the level or plat. 21. As the shaft was circular and the cage rectangular there was an extension at each level or plat which came out to meet the cage ("plat extension"). 22. The doors to the cage were solid steel. The sides of the cage were constructed from sheet steel with small perforations. There was an open area directly above the door and above the head height of approximately 60 cm. 23. The cage could reach speeds of 25 feet per second (approximately 27.4 km per hour) when travelling between plats. The normal speed of the cage is approximately 15kph. When the cage leaves the plat it gradually increases speed. As the cage approaches the destination plat it gradually slows down. When the cage is properly operated, at the point of reaching the plat it travels at a very slow speed known as creep speed. 24. There was no locking device on the cage door and not only could the cage door be opened whilst the vehicle was in motion, the system in place required that the cage door be opened prior to the cage coming to rest as it neared the plat at creep speed. 25. External to the cage door was a drop bar which stood at about lower chest/stomach height. The drop bar was put in place on the shaft side of the cage door. A nip point was created between the drop bar and the plat extension and other protrusions at each level as the drop bar passed the plat extension and the protrusions. The drop bar was as an added precaution to prevent a person inadvertently exiting the cage. OPERATING THE CAGE 26. The Safe Working Procedure in place as at 28 November 2002, SWP No U0112P required: "when the cage had reached its destination the person in control of the cage will open the cage door and ring one bell to stop the cage when the return bell from the winder driver is given the drop bar can be lifted and the plat door opened." It also stated "cage doors must be in the closed position when travelling". 27. In practice, as the operator approached the plat at which the cage was to stop, he opened the cage door as the cage slowed, sighted the plat and then rang the wiggins bell located on the plat adjacent to but outside the cage indicating to the driver to stop. The winder driver slowed the cage as it neared the plat and further slowed it when the cage was in the plat area. The winder driver could see the cage's basic position on the drum in front of him. The winder driver would stop the cage on receiving the stop signal from the operator. The operator may have then needed to signal to the driver to raise or lower the cage if it was not aligned satisfactorily with the plat. 28. Once the operator had finished with the cage he would then either hand the cage over to a new operator or he would release the cage to the winder driver by ringing six bells. In the circumstances where the cage was released to the winder driver, the winder driver could then move the cage independently of the operator and would "park" the cage in the shaft between plats or if requested take it to another plat. The winder driver would take the cage to another plat upon request. 29. Any person who operated the cage was required to first contact the winder driver by telephone. 30. When a new operator gained control of the cage the operator would then use the wiggins to communicate to the winder driver the level to which they wanted to travel. The bell code was displayed inside the cage and on the plat. 31. At the plat external to the cage was a sign headed "Pasminco Mining Broken Hill Use of Cages When a Full Time Platman is Not in Attendance" PERILYA'S APPROACH TO THE OPERATION OF THE CAGE 32. Following inductions held at the mine in June and July 2002, some underground employees believed that the absence of full time platmen meant that underground employees could operate the cage provided that they had signed off on the relevant Safe Work Procedure. Some of the employees who were travelling in the cage had some experience in operating the cage whereas others had little or no such experience... 33. It was the intention of Perilya's senior management that only authorised persons could operate the cage. In the early months of the recommencement of the mine under Perilya, the intention was that those authorised persons were ex-Pasminco employees who were experienced in operating the cage. However, two relevant incidents occurred on 26 July 2002 and16 August 2002. INCIDENT ON 26 JULY 2002 34. On 26 July 2002 a contractor from Woodman Tyre rang the bell at the top brace, situated on the surface, in an attempt to gain control of the cage without first telephoning the winder driver. This was contrary to the existing safe work procedure and potentially dangerous. 35. Investigation into the incident revealed that the Woodman Tyre employee had inadequate capability, lack of knowledge and did not possess the skill to operate the cage. 36. On or about 14 August 2002 Edward Butcher Vice President Metalliferous South Western District of the CFMEU contacted Inspector Welsh of the Department of Mineral Resources, [as it then was, now the Department of Primary Industry] ("the Department") regarding issues which had been raised with Mr Butcher in relation to the use of the cage. 37. On 16 August 2002 Greg Welsh, Department Regional Inspector, attended a meeting with Perilya management and shaft supervising personnel to discuss the complaint lodged by Mr Butcher. 38. Present at that meeting were Visko Sulicich (Production Manager), Stephen Jeffers (Production Superintendent), Noel Hannigan (Underground Infrastructure Foreman), Trevor Read (Electrical Superintendent), Tony Edwards (Safety/Training Officer) and Greg Welsh. 39. Mr Welsh was advised that Perilya were using a safe work procedure established by the former mine owners. This safe work procedure was entitled "use of cages when full time platman is not in attendance". 40. Mr Sulicich indicated that the procedure was being reviewed and that all personnel would be retrained in the reviewed procedure when the review was completed. 41. Furthermore, Mr Welsh indicated that the review being undertaken by Perilya should include a full consideration of all hazards. INCIDENT ON 16 AUGUST 2002 42. On 16 August 2002, at about 2.20pm, Scott Ferguson, who is employed by Perilya as a supervisor, failed to use the wiggins bell to stop the cage on level 18. 43. An investigation into the incident by the company identified that Mr Ferguson failed to notify the winder driver that the cage was level with the plat by ringing one bell before Mr Ferguson exited the cage. 44. Emerging from the steps Perilya had already commenced in relation to reviewing their safe work procedure, the discussions with Regional Inspector Greg Welsh and Perilya's reaction to the Scott Ferguson incident, Perilya set up a team to review the relevant safe work procedure and to retrain all the underground department in cage use. 45. Prior to 16 August 2002 Perilya had used a safe work procedure established by Pasminco. That safe work procedure was known as Pasminco Broken Hill Mine "Use of Cages When Full-Time Platman is Not in Attendance SWP No U012P". 46. The further review of the safe work procedure was completed by 20 August. On that date the new SWP titled "Perilya Broken Hill Mine Use of Cages when Full-Time Platman is not in attendance SWP No U0112P" was approved. 47. On or about 20 August 2002, Eddie Butcher raised his concerns directly with the Defendant about the fact that he understood that "anyone" could operate the cage. 48. Between 20 August and 4 September 2002, 45 employees were "signed off" by Tony Edwards indicating that they had read and understood the safe work procedure relevant to "use of cages when a fulltime platman is not in attendance". 49. Following the steps taken by the Defendant the following circumstances existed: (i) A number of employees understood that anyone who had signed off on the SWP was authorised to operate the cage. (ii) In fact, the mere fact of signing off on the SWP did not make a person competent or authorised to operate the cage. (iii) There was no published list of persons who were authorised to operate the cage. (iv) There was no proper documentation indicating which persons had been trained and assessed as being authorised to operate the cage. CONSULTANT'S REPORTS 50. In August 2002 "Ashton Safety Health Environment – Safety Health and Environment Consultants" undertook a safety and health audit of the Perilya Broken Hill Mine and prepared a draft for review and discussion. THE DEATH OF DARREN ANDREW 51. Darren Andrew commenced employment with the Defendant on 21 October 2002. After a short period of employment, personal circumstances caused him to indicate that he would cease his employment with Perilya on 28 November 2002. 52. Mr Andrew's experience and background involved truck driving and loader work rock breaking in Western Australian mines. 53. At the commencement of his employment Mr Andrew underwent a site induction. This included some information on how the cage was operated, including reference to the bell system. He was informed that he could not use the cage unless he was authorised. 54. Anthony Edwards was in charge of underground training, including induction training. The induction of itself did not make an employee competent to operate the cage. 55. At 7.00pm on 27 November 2002 Mr Andrew commenced work operating a rock breaker on level 17 in the underground section of the mine. 56. At about 12.40am on 28 November 2002 Mr Andrew travelled by cage to the level 21 lunch room ("crib room"). 57. At approximately 1.50am Mr Andrew left the crib room with a view to returning to his rock breaking task on level 17. 58. When Mr Andrew entered the cage after leaving the crib room he was accompanied by Michael Wheatley, Chris Laurie, Craig Barron and Robert Pollard. Wheatley, Laurie, Barron and Pollard were all returning to work on level 23. Mr Wheatley operated the cage to the level 23. 59. The cage travelled to that level and then Mr Wheatley handed the operation of the cage over to Mr Andrew. 60. Mr Andrew had not operated the cage either when travelling from level 17 to the crib room prior to lunch or when travelling from the crib room down to level 23 after lunch. 61. When Wheatley handed the operation of the cage over to Mr Andrew he spoke to the winder driver, David Goodman, via the e-cam system. He told David Goodman that he was handing the cage over to "Darren" or young Darren. 62. Mr Andrew then operated the cage. 63. Mr Wheatley had met Mr Andrew the night before (26 November 2002). He had no knowledge as to whether Mr Andrew was or was not competent to operate the cage. 64. Mr Andrew indicated he was taking the cage to level 21 by signalling via the bell on level 23. 65. The cage travelled past level 22 and then slowed down as it approached level 21. 66. At level 21 Paul Attard and Tony Gepp discovered the body of Mr Andrew. The head of Mr Andrew had been crushed between the drop bar at the front of the cage and some part or parts of the shaft between levels 23 and 21. In addition, the body of Mr Andrew was dragged through the narrow opening between the cage and the plat extension at level 21. 67. As the cage travelled from level 23 the door either came open or was opened and part or parts of the body of Mr Andrew extended past (the shaft side line of) the drop bar resulting in the rear of his head coming into contact with part of the shaft and the front of his head coming into contact with the drop bar. 68. At the time of his death, Mr Andrew was wearing a safety helmet. The rear of the safety helmet had a significant dint. Across Mr Andrews' forehead there was a deep laceration. THE CONTRAVENTION BY THE DEFENDANT PARTICULAR A "The defendant failed to ensure that the premises controlled by the corporation were safe and without risk to health in that a nip point was created by the plat extension or other protrusion, and the cage drop bar (referred to as a "safety bar" in the NBHC service shaft of the Perilya Broken Hill Mine ("the mine"). Persons riding in the cage were exposed to this nip point when the cage was moving and the cage door was open". 69. The drop bar was commonly referred to by mine workers as a "safety bar". 70. As the cage passed the plat extension the drop bar was 50mm from the plat extension. 71. As the cage travelled in the shaft the drop bar also passed by and very close to, other items protruding into the shaft. 72. If the cage door was open, as the cage was moving, and parts of anyone's person extended past the drop bar then those parts which were past the drop bar could be crushed between the drop bar and protrusions, (including the plat extension) which came close to the drop bar. PARTICULAR B "The defendant failed to have in place any or any appropriate system for ensuring that only employees competent to do so operated the cage in the NBHC service shaft of the mine". 73. Perilya sought to introduce a system whereby only competent persons could operate the cage. However, that system had the following inadequacies: (i) There was no published list of persons who were authorised to operate the cage. (ii) There was no proper documentation indicating which persons had been trained and assessed as being authorised to operate the cage. (iii) The system did not prevent unauthorised persons operating the cage. 74. After the incident on 16 August 2002, Noel Hannigan was assigned to assess persons who were competent to operate the cage. There was no formal system in place for assessing or checking the competence of people trained by Mr Hannigan. There was no record kept of people who went through any practical training with Mr Hannigan. PARTICULAR C "The defendant failed to adequately instruct and inform employees (including Darren Andrew) so that they knew which employees were competent to operate the cage". 75. The supervisors of the production and development departments knew of a number of people in their department who were authorised to operate the cage but did not know all of the people in their department who were so authorised. However, the supervisors had access to training officers and records which could inform them of who was authorised. 76. The winder drivers knew a number of people who were authorised to operate the cage but did not know all of the people who were authorised to operate the cage. When the winder drivers were contacted by employees via the telephone or the e-cam system they had no way of checking whether the employees were competent (trained and authorised) as they did not have access to a list of who was competent. STEPS TAKEN SUBSEQUENT TO THE INCIDENT 77. By about 4 December 2002 Perilya had taken the following steps: a. Restricted the operation of the cage to experienced shaft crew b. Instructed all operators of the cage who had been trained by Perilya not to operate the cage pending further training c. Published a list of operators who were authorised to operate the cage and posted same in the winder driver's control cabin 78. Subsequently, further changes were made to the operation of the cage. Perilya reassessed the safe work procedures from time to time. 79. On 15 September 2004 the company approved "Perilya Broken Hill Mine Operation of the Man Riding Shaft Conveyance SWP U0142P" (Annexed). 80. On 29 May 2006 Perilya approved the document "Operation of the Man Riding Shaft Conveyance SWP U614" (Annexed). 81. Since August 2006 the following applies: (i) Authorised platmen operate the cages; (ii) There are lists of the relevant authorised platmen; (iii) The lists are available to the winder drivers; (iv) There has been added to the cage a Perspex section so that the plat can be viewed without opening the door; (v) A locking system has been placed on the cage door. The cage door can still be opened while the cage is in motion. However, the winder driver is alerted to the fact that the door is open by way of a light in the winder driver's cabin and is able to bring the cage to a controlled stop. (vi) The system has been modified so that the door is not opened until the cage has stopped. (vii) The primary source of communication with the winder driver is through the e-cam and the "bells" within the cage. (viii) The back up system is to use the wiggins bells. 4 In addition, there was tendered into evidence a number of affidavits and other documents. These included affidavits of Peter Eggleston, Barry Cahill, Simon Billing, Bradley Rowbotham, Bob Morley and Timothy Clifton. 5 I acknowledge receiving Victim Impact Statements of Brian Andrew and Joyce Nairn, the parents of Darren Andrew. This Court expresses its sympathy in the sad and tragic loss of a son and the effect that this loss has had on his family. It may be observed, also, as was mentioned by counsel for the defendant, that this accident has had a profound effect on all persons associated with Perilya including not only Mr Andrew's fellow work mates but also at all levels of management in the company. No doubt that impact has been exacerbated by the circumstances of the close-knit community at Broken Hill where the incident occurred. 6 The incident which occurred and which has given rise to these proceedings must be seen in the context of an overall factual background which includes the following matters as established by the evidence: 1) When Perilya purchased the mine from the Pasminco organisation, much of the equipment and infrastructure was in a poor state and needed to be made good or replaced. 2) Under Pasminco there was a poor lost-time injury rate at the mine, which was about four times the Australian average for mining operations. 3) Following an extensive audit of the state of the mine, the defendant determined that it was necessary to shut down its operations completely for a period of four weeks to allow it to be upgraded. Significant improvements, including those directed to safety of operations, were made during this period. Some of the matters that were the subject of rectification or improvement included the upgrading of underground roads, removal of a number of hazards, the removal of accumulated lead dust, the repainting and refitting of the change house and crib rooms, the fitting of seat belts to mobile equipment, the provision of appropriate uniforms, the introduction of laundry facilities for uniforms, the prohibition of smoking, the expansion of designated hard hat areas, extensive mapping of the mining operation, and, significantly for safety, the introduction of formal workplace inspections, job safety analysis and the establishment of a safety committee. External consultants were retained to develop a training program. Furthermore, all persons who were employed by Perilya were required to undergo a pre-employment medical examination and a five-day induction program. The evidence is to the effect that employee safety occupied a significant part of the induction program. A complementary safety management program was also developed by external consultants, which is comprehensive in nature and which extended to all facets of the operation of the mine. This included the holding of regular meetings extending over the whole of the workforce to discuss not only the work that was to be performed during each work period but also the safety aspects associated with the carrying out of that work. 4) Perilya reviewed the operation of the cage and in particular persons who would use the cage. Under Pasminco there were dedicated platmen, although when these dedicated platmen were not working, it seems that there was no particular system to make sure that only authorised and competent people operated the cage. Perilya removed dedicated platmen and required persons employed in the mine to operate the cage as part of their ordinary duties, on the basis that those persons had been recognised as competent to do so and had received any necessary training to make them competent. Such a move was criticised as being unsafe by some employees and by a CFMEU industrial officer. 7 Although, as is revealed in the agreed facts document, which I have set out, there were deficiencies in the Perilya procedures for the operation of the cage, overall Perilya has demonstrated a strong commitment to occupational health and safety matters and has demonstrated awareness of the need to comply with its obligations to employees, which are created by the Act. 8 After the incident, Perilya took a number of steps to remove any risk to safety arising out of the operation of the cage. They are set out in the agreed facts document. 9 The process by which a court assesses a penalty is established by principles developed by the High Court of Australia and the New South Wales Court of Criminal Appeal and is also governed by principles contained within the Crimes (Sentencing Procedure) Act 1999. 10 The commencement point for the determination of an appropriate penalty is an assessment of the objective seriousness of the offence. The maximum penalty that applies to this defendant is $550,000. That is, however, reserved for what is called a "worst case" crime. In the context of a breach of occupational health and safety laws, a worst case scenario would apply to a defendant who had no regard at all for any occupational health and safety obligations and took no steps of any kind to try and comply with obligations created by that legislation. If, against this background, there was an incident which, for example, was caused in circumstances where there was no safety equipment, no training or instruction or supervision and there were no procedures of any kind in place to make the particular operation safe, then this is the type of situation which one could look at in terms of a worst case scenario. 11 However, the circumstances that apply to Perilya are far from this type of situation. There is evidence that it did have in place a comprehensive set of rules governing the way in which mining operations would occur with particular regard to the safety of employees, it had provided equipment that would allow work to be carried out safely, it had provided instruction, training and supervision to employees who were working in the mine and, in the context of the operation of the cage, did have in place some processes and procedures, even though they were not altogether as safe as the procedures that were introduced after the incident. 12 In assessing the objective seriousness of the offence, it is also necessary to look very carefully at what actually happened in connection with the operation of the cage when this unfortunate incident occurred. As is obvious, in all the circumstances, Mr Andrew should not have been left alone in the cage. He had only started employment with Perilya some little time before the incident and was not authorised to operate the cage. There is evidence from both Mr Morley and Mr Rowbotham that Mr Andrew had been given some information about how the cage operated but there was no assessment by either of these persons that Mr Andrew was competent to do so. The cage was able to move at some speed and its door was able to be opened whilst the cage was moving. True it is that no one would have expected the cage door to have opened and Mr Andrew's head to have come into contact with the nip point, as is clearly what happened. However, why this happened and under what circumstances will never be known and it is not profitable to speculate any more about the accident. Nor, given the lack of any evidence about this matter, is it appropriate that this Court speculate in any way as to these circumstances. It is sufficient to observe that the failure to ensure that only an authorised and competent person operated the cage coupled with a failure to allow other employees to be able to identify whether an authorised person was in fact operating the cage and the ability of the cage to move with the door open all brought about a situation where the defendant clearly failed in its absolute obligation to ensure the health and safety of Mr Andrew on this occasion. 13 I regard the breach by the defendant of its obligations under s 8(1) of the Act as a most serious one and the penalty will need to reflect this. 14 It is also necessary to take into account the deterrent effect of penalties that are imposed for criminal behaviour. The fixing of an appropriate penalty will serve to deter others in the mining industry from failing to meet their obligations. It will also deter this defendant from breaching its occupational health and safety obligations in the future. In this regard, however, I take into account the comprehensive steps taken by the defendant immediately after the incident that are designed to make sure that an accident of this kind will never occur again. 15 The sentencing principles to which I have referred allow a penalty to be reduced having regard to a number of matters. These include the fact that the defendant pleaded guilty at the earliest opportunity, namely immediately after the prosecution amended the charge. Furthermore, the penalty must be reduced to reflect the fact that the defendant has taken comprehensive steps, as I have said, to ensure that an incident of this kind will not occur again, that Perilya has co-operated fully with the prosecutor in carrying out its investigations, has expressed remorse and contrition for what has occurred, especially by taking steps to assist the families of Mr Andrew and has no prior convictions for any occupational health and safety breach. All of these matters when combined require the Court to apply a significant discount to the penalty that would otherwise have been imposed. 16 I repeat an observation earlier made that whilst this is a most serious offence, it cannot be characterised in any way as being a worst case scenario. 17 Accordingly, I intend fixing a penalty of $95,000. 18 The prosecutor sought a moiety of the penalty and a costs order, neither of which was opposed. Orders 19 I make the following orders: 1) The defendant is found guilty of the offence under which it is charged and convicted accordingly. 2) The defendant is to pay a penalty in the sum of $95,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor assessed by the Court in default of agreement. 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.