Industrial Court of New South Wales CITATION: Rodney Dale Morrison v Rio Tinto Coal (NSW) Pty Ltd [2007] NSWIRComm 78 PROSECUTOR: Rodney Dale Morrison PARTIES: DEFENDANT: Rio Tinto Coal (NSW) Pty Ltd FILE NUMBER(S): IRC 2368 of 2006 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(2) - guilty plea entered - mine operator engages specialist tyre changing service - tyre changing of heavy load mining vehicles by purpose built tyre changer crane - system of work involved two people - operator with remote control and tyre fitter - contractor's safety rules required tyre fitter to be clear of crane grabs and load - no provision made for operation to stand clear of load - part of operation required operator to stand behind heavy vehicle wheel while lining up with wheel drum - operator crushed by 4 tonne tyre against rear of truck fitted with crane apparatus - fatality - mine operator exercises considerable control over contractors working on site - no separate or different safe working directions given to tyre contractor for heavy vehicle tyre changing operation - mine operator aware of two crush injuries using different Vehicle Loading Cranes at other operations - mine operator utilises system of safety audit - risk readily observable - significant documented and enforced safety system - prompt action taken to address risk exposed by accident - serious breach - risk of crush injury foreseeable - effective remedial steps available - general deterrence - reduced role for specific deterrence - first offence in 10 years of operation in hazardous industry - early plea - substantial subjective factors - family Victim Impact Statements received - appropriate for same penalty to be imposed on both defendants notwithstanding prior conviction of contractor - penalty imposed Crimes (Sentencing) Procedure Act 1999, s 21A(2) LEGISLATION CITED: Coal Mines (General) Regulation 1999 Coal Mines (Open Cut) Regulation 1999 Markarian v R (2005) 79 ALJR 1048 especially per McHughJ at [65] CASES CITED: Regina v Brett Raymond Walker [2005] NSWCCA 109 Rodney Dale Morrison v Marathon Tyres Pty Ltd [2007] NSWIRComm 77 HEARING DATES: 22/03/07 DATE OF JUDGMENT: 4 April 2007 PROSECUTOR: Mr D O'Neil of counsel SOLICITORS: Crown Solicitors LEGAL REPRESENTATIVES: DEFENDANT: Mr P Kite SC and Ms L McManus of counsel SOLICITORS: Sparke Helmore JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 4 April 2007 Matter No IRC 2368 of 2006 RODNEY DALE MORRISON v RIO TINTO COAL (NSW) PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 78 1 In approximately 1997, Rio Tinto Coal (NSW) Pty Ltd ("Rio Tinto") began to operate and employ people to manage the Mount Thorley/Warkworth Mine in the Hunter region of the State. In 1999, Rio Tinto was purchased by Coal and Allied Industries Ltd ("Coal and Allied"). As part of it's mining operations at Mount Thorley/Warkworth, Rio Tinto engaged contractors to provide specialist services as well as using its own employees in the mining operation. Such a specialist provider was Marathon Tyres Pty Ltd ("Marathon Tyres"): that company provided tyre and wheel servicing repairs for the very large earthmoving equipment used in the mining operation. 2 On 28 May 2004, Mr Paul Strong and Mr Jason Richards, employed by Marathon Tyres, were working at Mount Thorley and changing tyres on Rio Tinto earthmoving equipment. The two employees were using a Volvo service vehicle with a tyre handler attached to the rear. In the course of changing a tyre, Mr Strong was crushed between the tyre and the rear of the service vehicle and received fatal injuries. 3 The circumstances surrounding this accident were investigated by the Department of Primary Industries leading to proceedings being commenced against Rio Tinto for a breach of s 8(2) of the Occupational Health and Safety Act 2000 and against Marathon Tyres alleging a breach of s 8(1) of the Act. On the first listing of the Rio Tinto matter before the Court, after the service of the prosecutor's brief, the defendant entered a plea of guilty to an Amended Application for Order. This judgment deals with the evidence and submissions on the sentencing of Rio Tinto. The related proceedings involving Marathon Tyres are reported as Rodney Dale Morrison v Marathon Tyres Pty Ltd [2007] NSWIRComm 77 4 The charge under s 8(2) of the Act particularised the risk as being that non-employees, whilst undertaking tyre changing, were exposed to a risk of being struck and/or crushed by the crane mounted tyre handler and/or its load. The particulars of the failure were an allegation that the defendant failed to ensure that non-employees, whilst undertaking tyre changing, undertook a safe system of work in that: (a) the safe work procedure in use by non-employees failed to indicate where the tyre handler operator should or should not stand while the tyre handler was not isolated; (b) the safe work procedure in use by non-employees failed to indicate that non-employees should not enter the area in which a tyre was being removed or replaced without isolating the tyre handler. It was alleged that, as a result of these failures, Mr Strong's safety was placed at risk. These particulars raised similar issues to the matters particularised in the charge brought against Marathon Tyres. 5 The parties submitted a Statement of Agreed Facts relating to the accident involving Mr Strong and the surrounding circumstances. That document appears as an annexure to this judgment. That document notes that the tyre being changed at the time of the accident was approximately 3.5 metres in diameter, was nearly a metre wide and weighed 4 tonnes including the rim. Mr Strong was using the remote control of a hydraulic crane with arms that permitted tyres of this size to be grabbed and manoeuvred. Because of the delicate nature of the valve and braking system, the tyre operator was required to have a clear view when lining up the wheel with the hub and therefore stood behind the wheel when a tyre was being moved away from the operator towards the hub. On this occasion, Mr Strong found difficulty in lining up the wheel with the hub and was bringing the tyre back to lie it down in order to obtain a better grip before again attempting to refit the tyre. While the wheel and tyre were coming back, Mr Strong did not move from behind the tyre and was crushed between the tyre and the rear of the service vehicle. A Marathon Tyre safe working procedure required the tyre fitter Mr Richards to be clear of the area during such movement but gave no such direction in relation to the tyre operator. At the time of the accident, Rio Tinto had knowledge of two fatalities arising from the use of vehicle loading crane operations ("VLC") and after consultation had produced guidelines and protocols but only in relation to VLCs using a hook rather than the arms and grabs attachment used by Marathon Tyres. 6 A certificate of prior convictions confirmed that Rio Tinto had no previous convictions. The prosecution also tendered a number of photographs, sketch plans and documents used by Rio Tinto relating to risk assessment including new instructions for tyre handling operations following the death of Mr Strong. 7 The evidence for the defendant was provided by way of the affidavit of Mr Kim Truter the general manager of Mount Thorley/Warkworth mine. Mr Truter gave some background to the Mount Thorley/Warkworth mine including the fact that the defendant employed approximately 135 people at that mine. The defendant had been operating for ten years and had been purchased in 1999 by Coal and Allied. The defendant was wholly owned by Coal and Allied and Coal and Allied was part of the Rio Tinto group. Coal and Allied had operated in the New South Wales mining industry for over 150 years and provided on-site work for approximately 2,500 people in the Hunter Valley. Approximately 700 people currently worked at Mount Thorley/Warkworth and a similar number worked there in May 2004. The defendant engaged a number of specialist contractors such as Marathon Tyres. In May 2004, the mine generally operated on a 24 hour basis seven days per week and continued to operate on that basis. 8 Mr Truter gave detailed evidence regarding the defendant's occupational health and safety systems prior to and following the incident involving the death of Mr Strong. The defendant's health safety and environmental policy statement declared a commitment to supply coal to global markets in an efficient, safe and environmentally responsible manner. The policy statement committed the defendant to conduct its business in a way that maintained a safe and healthy workplace for employees, contractors, visitors and the surrounding community. Goals were to be set to improve the defendant's performance in striving to achieve the target of zero injuries, zero occupational related diseases, zero equipment damage and zero environmental incidents. The health, safety and environmental considerations were said to be fully integrated into the defendant's business through risk assessment and hazard identification. In particular, it was stated: No work is so important that it must be undertaken without a clear understanding of a safe method that minimises the risk of injury and environmental harm, and a commitment to follow that method. 9 All health, safety and environmental programmes were audited on a regular basis to confirm and improve the defendant's performance against the requirements of the policy. Mr Truter as general manager also had a personal safety plan which committed him to a number of steps, including the performance of at least three scheduled quality safety interactions per week and the implementation of the "take five" approach as an additional risk assessment tool. At Mount Thorley/Warkworth there was a three year occupational health and safety plan from which an annual plan was developed with each unit within the defendant developing its own individual safety plans from the overall plan. There was a focus on a risk assessment and management campaign, safety interactions and encouragement of innovation in safety including through recognition and reward of employees' safety achievements. Mr Truter explained the safety interactions system noting that in 2002, DuPont was engaged to assist Coal and Allied in the development of a behavioural approach to safety with the focus on leadership through a series of training modules. DuPont provided mentoring to the senior leadership of all Coal and Allied sites on safety processes: a key process was the introduction of safety interactions being a tool that had assisted Coal and Allied significantly to reduce its injury levels in recent years. This system, also known as the safety observation system, involved a pro-active approach to hazard identification. Prompt cards had been provided from May 2004 and were a breast pocket tool containing details of the current safety focus for the mine. Cards were updated as the safety focus changed. In recognition of employees' safety achievements, the defendant issued positive contribution cards - each card accumulated $10 to be donated to a charitable organisation. The cards listed safety observations such as recognising and correcting unsafe conditions, reminding a co-worker not to perform an unsafe act, removing or cleaning unsafe objects or debris from a work area, giving positive feedback for working style, reporting a near hit or hazard and making a task safer. A number of other initiatives were implemented in order to achieve the goal of zero workplace injuries. 10 Prior to May 2004, all of Mount Thorley/Warkworth's policies and procedures were available in hard copy or from the intranet including documentation associated with standard or safe work procedures. Since May 2005 the hard copy system was no longer used because of difficulty in keeping such documents up to date. Hard copies were now available to be printed from the intranet. In addition, laminated copies of safe work procedures used regularly were provided to employees and contractors. The safety management system was regularly evaluated and reviewed as a result of input from employees, formal and informal risk assessments, plan task observation findings, self-audits, Department of Primary Industries audits, health, safety and environment audits and changes to legislation. The communication of policy procedure and safe work procedures as well as other safety information occurred regularly through meetings with employees, occupational health and safety meetings, committee meetings, displays in the workplace such as noticeboards and banners and the safe interactions system. In 2005, further initiatives were taken including a pre-task risk assessment, the leaders' safety induction programme and a general managers' safety induction process. These were all explained in Mr Truter's evidence. 11 In relation to contractor management, Mr Truter stated that Coal and Allied engaged experts to undertake specialised work in its mining operations and in order for a contractor to be selected for that work a rigorous process was undertaken. The process involved the potential contractor self-assessing its organisation using a competency profile and answering a list of questions covering a number of categories and providing supporting documents where required. Up to May 2004, Coal and Allied assessed the responses and information provided by potential contractors using a contractor competency scoring template. This was the assessment system undertaken when Marathon Tyres was engaged. This assessment system had since been revised. Following an assessment by Coal and Allied of the responses, an on-site audit was then undertaken by a number of Coal and Allied personnel. The contractors' employees then underwent a generic induction process provided by an external specialist training provider and covering one day. The induction was specific for Coal and Allied mines and incorporated all of Coal and Allied safety requirements. A site induction was then undertaken by contractors' employees including provisions for access and egress, emergency procedures, incident reporting requirements and site specific rules. Where contractors' employees were required to drive a vehicle on site, then a successfully completed vehicle driving theory course was necessary - when completed, they were issued with a restricted licence permitting them to drive on site or unrestricted licence that permitted them to drive in pit areas. All contractors were required to undergo refresher induction training on an annual basis. Coal and Allied held bi-monthly contractor meetings at a public venue for approximately two hours with an agenda including health and safety performance, trends and issues with a strong focus on changes to components of the safety management systems. These meetings were described as interactive with contractors encouraged to participate and present information. 12 By reference to numerous documents, Mr Truter gave evidence about the defendant's induction, training and competency testing of employees, a system of consultation committees involving information from national and international mine sites, the use of a "speak out programme" being an independent, confidential and telephone free-service introduced in 2002 to provide employees and contractors with the means of reporting and communicating issues, the system of hazard identification and reporting, auditing, incident investigation, safety improvement projects, health management, emergency response management and the employee assistance programme. 13 As at May 2004, Mount Thorley/Warkworth had nine dedicated full-time safety personnel including a safety specialist, an injury management adviser and an emergency response officer. A further general safety advisor and a safety and training advisor had been employed for each of the production and engineering areas. Mr Truter stated that significant resources had been applied by the defendant to occupational health and safety although, from an accounting perspective, it was difficult to quantify a precise figure for all safety related expenditure. In relation to the defendant's safety record, it was stated that there had been a steady decline in lost time injuries per 200,000 hours between 2003 (being 1.71) to 2006 (being 0.19). Mr Truter said that the defendant recognised and rewarded positive safety behaviours, contributions and achievements and the rewards included barbeques for the whole unit. Achievements site wide were recognised by informing all employees and those contractors relevant to the achievement in writing by memorandum. An example was given of achievement and recognition in the mining unit achieving 365 consecutive recordable injury free days. Coal and Allied had received several significant occupational health and safety awards, many of which involved innovations developed by employees at Mount Thorley/Warkworth as a result of hazards being identified and reported through the hazard identification system. A number of those awards were put into evidence by the defendant. 14 In relation to its community involvement, Mr Truter said that Coal and Allied aimed at making a positive and long term contribution to the communities in which it operated by working with community groups. The company had been involved with the Hunter Westpac Rescue Helicopter Service. In 1998, it had established a community trust with an initial funding of $3 million, was a sponsor of the Hunter Medical Research Institute, was a major sponsor of the Hunter Valley Research Foundation and had been involved with the Newcastle Knights national rugby league team which was substantially supported by the local community. There was a sponsorship and donations programme in which Coal and Allied encouraged local schools, service clubs, sporting groups and other community based organisations in the Hunter Region to apply for funding. Some 11 bodies were identified that had participated in this initiative. There was also evidence of Coal and Allied's involvement in aboriginal relations, especially in the establishment of an aboriginal development consultative committee in September 2006 to oversee a funding programme for the Upper Hunter Valley aboriginal community; the establishment of community consultative committees at each Coal and Allied site and meetings twice a year whereby there was monitoring of compliance with conditions of consent and providing a forum for environmental issues to be raised. Mr Truter also spoke of Coal and Allied's commitment to the environment and its participation in a fund concerning greenhouse gas abatement. Reference was made to two industry environmental awards achieved by Coal and Allied and reflecting favourably on its high standard of environmental practices. 15 Following incidents in Queensland and South African mines involving a VLC with a hook and truck mounted controls, Coal and Allied formed a VLC project team to consider those incidents and to improve the safety of VLCs used at all company sites. A plan was developed with actions to be phased in from November 2002 to December 2003 so it became requirements at all Coal and Allied sites. The actions required were implementation of restricted work zones (no-go zones) under jib work area or load; implementation of fixed operator control protection zones; implementation of safe work practice covering completion of a risk assessment to identify specific hazards and established controls; implementation of pre-operation protection checklists with a checklist to reside in the respective VLC; implementation of regular and scheduled maintenance inspections (monthly defect and regular structural); implementation of a multi-work permit by operators prior to carrying out lifting work; all operators including contractor operators required to meet the nationally recognised coal competency standard, WorkCover VLC standard or other site approved competency assessment prior to operating a crane on a Coal and Allied site; compliance with all specific Australian Standards and Codes of Practice and assistance in developing the Rio Tinto Group crane and lifting standard and a guideline for barricading. Coal and Allied educated contractors on the safety issues and required changes in relation to the use of VLCs on its sites at the monthly contractor safety meetings. Produced in evidence were copies of PowerPoint presentations, contractor meeting agendas and a copy of the contractor requirements for the safe operation of the VLCs. 16 The work being carried out on the earthmoving vehicle at the time of the accident was described by Mr Truter. This area was known as the vehicle service bay and was located on the Mount Thorley side of the Mount Thorley/Warkworth mine. The service bay was purpose built for tyre changing in order to avoid the common experience in the industry where tyre changing might be performed at a pit or throughout a mine where there was no dedicated service bay. The bay had a large concrete pad with steel roofing with one side fully open and two sides partially opened to enable large earthmoving vehicles to be positioned for tyre changing. The remaining side of the bay was fully enclosed and adjoined an amenities area including a meal room and a workshop. The bay was provided with lighting, water, power and compressed air. 17 Following the accident, the steps taken by management on site were described in some detail by Mr Truter including the placing on standby of the Hunter Westpac Rescue Helicopter Service. Emergency response teams were contacted and CPR was commenced. The site ambulance officer assisted with first-aid and resuscitation together with the use of the site defibrillator. Mr Strong was ultimately flown by helicopter to the John Hunter Hospital in Newcastle, after which mine personnel then secured the scene of the accident including choking the tyres of the Marathon Tyres service vehicle. Assistance was then given to general duty police, forensic police and the Departmental inspector when they arrived at the site at various times. Just after midnight, work ceased at the mine and all those present were sent to the Warkworth mustering area. The majority of mining operations did not recommence until 6.30 pm on 30 May 2004 not including tyre changing operations. Immediately following the incident, all tyre changing operations were suspended at the site and across all other Coal and Allied operations. During this period, vehicles requiring a tyre change were unable to be used. The Marathon Tyres service vehicle was not re-introduced for tyre mounting operations after this incident on any Coal and Allied site. The service vehicle was only used for site delivery, loading and unloading of tyres with certain controls until the development of a purpose built forklift. 18 It was noted that, shortly after the incident, senior management were in attendance to co-ordinate responses and to support employees. During the first 40 hours following the incident, a number of senior personnel within Coal and Allied and the Rio Tinto group attended the mine to assist with the co-ordination and management of the incident and to provide appropriate support to employees and management at the mine. Shortly before 1.00 am on 29 May 2004, the mine manager debriefed Mr Richards, his supervisor and his manager. At this time Mr Richards was invited to use the services of the Mount Thorley/Warkworth employee assistance programme. At approximately 2.00 am, an employee assistance programme counsellor attended the mine at the request of the general manager, counselling of all personnel involved commenced at 2.30 am. These people were driven home or offered a lift home by the mine employees not involved in the incident. The counsellor remained on site to assist as required during Saturday, 29 May 2004. All staff reporting for the morning shift on Saturday were informed of the incident and advised that operations had ceased. Other shift employees and contractors were informed of this situation throughout the day. Senior management at the mine remained in constant contact with employees directly involved in the emergency response to check on their welfare and to offer assistance and support. Similar contact was maintained with the senior management of Marathon Tyres. A safety notice and incident gram was issued across the Rio Tinto group including all Coal and Allied sites this being the standard notification method to advise of such incidents. 19 Following the accident, a systems safety accident investigation was conducted including Coal and Allied and the Rio Tinto group personnel together with external experts. A series of comprehensive risk assessments were then conducted on tyre changing facilitated by an external consultant over a period of six days and involving Coal and Allied personnel from all sites and Marathon Tyres tyre fitters and supervisors. These risk assessments distinguished between the two methods of tyre changing used at Coal and Allied sites, namely, use of a tyre handling forklift and use of a crane mounted tyre handler. In June 2004, a notice was issued dealing with the requirements for tyre handling operations using a crane tyre handler. That document was to operate until further notice. Under this document, all tyre handling operations were to have supervision at all times to ensure compliance with control measures. That supervision involved a person from Coal and Allied and a Marathon Tyres supervisor. A no-go zone was to be demarked immediately after setting up the tyre handling unit and before any tyre handling operations were to occur. The demarcation was to be made using hard barriers. There were prohibitions on entry to the work area and no-go zones could only be removed after the tyre handler had been returned to the travelling position on the crane and the tyre secured to the hub or all tyres were flat on the ground. 20 When tyre changing operations resumed at Coal and Allied sites only the tyre handling forklift was to be used. That forklift was based at Hunter Valley operations and shared by all three Coal and Allied mines. Coal and Allied personnel worked with Marathon Tyres employees to review and implement new safe work procedures for tyre changing using both a forklift handler and a crane mounted tyre handler. These safe work procedures required the use of hard physical barriers to the restricted work area and prevented access to it. Use of the forklift for tyre changing operations created visibility issues because of the central mast. As a result, Coal and Allied and Marathon Tyres worked together and, in late 2004, engaged a forklift manufacturer to assist in the development of a purpose built forklift for tyre changing operations including the loading and unloading of tyres on to a transport vehicle. Since May 2005, the purpose built forklift was the only tyre changing equipment allowed to be used at all Coal and Allied sites. The forklift had now been used at other coal mines within the Hunter region. Mr Truter said that Coal and Allied had invested significant hours and funds in developing and implementing the new purpose built forklift although the expenditure could not be quantified. In addition, further Coal and Allied VLC requirements were advised to contractors at a June 2005 meeting including the introduction of additional controls (remote controls having the capacity to be disabled, completion of a compliance statement for installation and a VLC compliance sheet). From November 2005, all remote control VLC operations were banned at Coal and Allied sites. 21 Mr Truter stated that the defendant had co-operated with the Department of Primary Industries at all stages of the investigation. All facilities were made available to the investigators and every request was promptly responded to. A donation was made to the Marathon Tyres employees' fund for the purposes of Mr Strong's family and included donations made by mining company employees. Senior management from the mine attended Mr Strong's funeral including the General Manager, Manager of Maintenance and Manager of Mining. Mr Truter spoke to Mr Strong's father at the coronial inquest and on behalf of Mount Thorley/Warkworth expressed his deep regret for the loss of his son. Other employee assistance included the provision of counselling immediately following the incident and ongoing access to the employee assistance programme, access to an on-site chaplain service, employee leave requests were granted, employees were kept up-to-date on the progress of the management of the incident, employers were kept up-to-date on the progress of the coronial inquest and these proceedings by way of briefings, legal advice and support was provided to all employees involved in the incident or interviewed by the Department or who were required to attend the inquest to give evidence. All employees and their families required to give evidence at the inquest were offered support and counselling. Senior management were also in attendance for each day of the inquest. 22 In his affidavit, Mr Truter stated that the defendant accepted its responsibility for the incident and had entered its plea of guilty at the earliest opportunity. The defendant deeply regretted that any of its employees and contractors suffered as a result of the death of their friend and colleague Mr Strong. The defendant regretted that any of its contractors were exposed to a risk in the workplace and suffered an injury as a result of the incident, in particular Mr Strong. Mr Truter expressed on behalf of the defendant sincere and genuine regret and contrition that the incident had not been prevented. Mr Truter reiterated his condolences to Mr Strong's father and took the opportunity in his affidavit evidence to again express condolences and regrets for the incident. DELIBERATION 23 The prosecutor submitted that the maximum penalty for the offence was a significant consideration and was set here at $550,000. In the present case, the breach had occurred in the context of specified statutory obligations to assess and deal with risks to safety under the Coal Mines (General) Regulation 1999 and under the Coal Mines (Open Cut) Regulation 1999. It was submitted that the defendant's assessment of the specific work procedure undertaken by Marathon Tyres was ineffective. The defendant had assessed contractors and inducted contractors' employees but it had failed to undertake an assessment of the specific safe working procedure documented by Marathon Tyres. The defendant undertook both scheduled and random audits of work processes and physical areas of work. Its project team investigating vehicle loading cranes proposed soft barriers, hard barriers, risk assessments, directions not to work under a jib, the creation of a no-go zone, a prohibition on working below an active jib, the provision of hard barriers so that active controls were not within crane swing radius, the recommendation of hard barriers for remote control VLCs, manual controls for recovery only and manual control to have limited access. These matters were all identified in relation to the VLC with hook but no consideration had been given to applying the same protections to Marathon Tyres using a VLC with arms and grabs. 24 The degree of foreseeability was a significant factor to be taken into account when assessing the level of culpability of the defendant. Here the risk of being struck and/or crushed by the crane mounted tyre handler or its load presented a real risk of extremely serious injury including fatal injuries. The risk was not only readily foreseeable but, clearly, should have been foreseen. The availability of remedial steps was relevant in assessing the seriousness of the offence. In this matter, steps taken by the defendant after the accident were all capable of being taken prior to the accident. While here the work was being supplied by a specialist contractor and the defendant relied on such contractors in its mining operations, nevertheless, the substantial steps it took after the incident were an indication of the steps that could have been taken by the defendant prior to the accident. The fact that Marathon Tyres failed to ensure the task was not performed safely did not diminish or detract from the failures of the defendant. It was also submitted that there should be a significant component of the penalty representing both general and specific deterrence. 25 With regard to subjective factors, it was accepted by the prosecutor that there was an early plea of guilty and a discount of the penalty up to 25 per cent was appropriate. It was also accepted that the defendant took significant steps to improve workplace safety after the incident and that the defendant had no prior convictions. The defendant had co-operated with the Department of Primary Industries throughout the investigation and the prosecution. 26 For the defendant, it was submitted that there were certain benefits available to a first offender by way of leniency. While it was accepted that general deterrence would play a role in the setting of an appropriate penalty, the role of specific deterrence was an issue in the present case. The evidence demonstrated a culture of safety that had been encouraged and nurtured by the defendant. A good example of that approach was the VLC project based upon information gathered from other mining operations both interstate and international. The defendant had been able to substantially reduce the frequency of injuries despite operating for ten years in a dangerous industry. It had been pro-active in promoting safety - precisely what specific deterrence was directed to achieving but this had already been achieved and addressed by the detailed safety system in existence before the accident and the many steps taken after the accident to ensure that this type of risk would not arise again. In those circumstances, there was little role for specific deterrence. 27 In relation to the prosecutor's submission about the defendant being aware of the crush risks associated with the operation of VLCs, it was submitted that the injuries prompting that project involved a variety of cranes and not tyre grabs used with the assistance of remote controls. While the risk was accepted to be foreseeable, in the sentencing process it had to be assessed to what degree the risk was foreseeable. It could not be said that this risk was readily foreseeable having regard to the remote control capacity and the directions given about keeping the tyre fitter out of harm's way, showing that it was assumed that the operator using remote controls would not place himself behind a wheel and tyre coming back towards the rear of the service vehicle. Precisely why this accident occurred was not known. There was no suggestion that Mr Strong was misbehaving and in the circumstances, the defendant had entered its plea of guilty in recognition of the fact that it should have addressed the risk and had now done so. Recognition had also to be given to the fact that this was a purpose built facility designed to overcome stability problems when attempting to tyre change within the mine and that there was a variety of processes including audit procedures to address safety issues. The use of a specialist contractor was a factor to be considered. In this case, the assessment could be made that there was little chance of the defendant re-offending. 28 The charge to which the defendant has pleaded guilty accepts that there were a number of failures to ensure the safety of non-employees in this tyre changing task. Both the contractor Marathon Tyres and the defendant had extensive written systems of safety supported by training, supervision and audit yet this most simple and easily identifiable risk was not addressed. It is of some significance in this case that the defendant exercised a high degree of control over those who came on to its mining site and understandably so. Employees of contractors such as Marathon Tyres had to be inducted in the defendant's system and subjected to their safety requirements in performing their work on the defendant's site. Amongst other things, Marathon Tyres employees (such as Mr Strong did on this occasion) were required to obtain a work permit from a supervisor employed by the defendant. While the defendant submits that it was a consideration in assessing the seriousness of the offence that it had engaged a specialist tyre changing operator for this heavy vehicle task, nevertheless, the defendant directly and closely involved itself with the safety of such operations including the provision of the service bay as a facility. The evidence was that it was common practice for employees to be in the work/load area at certain times during the removal and wheel fitting process and, while there were provisions to remove the tyre fitter from the work area, no such directions were made in relation to the operator. It was foreseeable that any person working in the area behind a wheel being changed and, in particular, working in the space between the wheel and the rear of the service vehicle would be in danger of suffering a crush injury which would likely to be very serious or fatal. Here the risk was observable from the day-to-day operations of the contractor, the risk was foreseeable and the remedial steps were simple and easily taken. In the present case, the defendant had taken steps to isolate those working in the vicinity of a VLC with a hook attachment but, apparently, had not regarded it as necessary to take the same steps in relation to a VLC fitted with the tyre changing grabs because it was thought that the use of remote controls by the operator made that system safer. In light of the experience involving Mr Strong, the defendant has prohibited the use of remote controls because of their capacity to allow a discretion to be exercised by the operator. While all these steps taken after the incident are admirable, they are to be considered in the sentencing process. Notwithstanding the extensive safety system, this was a serious breach. 29 The defendant properly accepted that general deterrence would necessarily form a significant aspect of the penalty. In relation to specific deterrence, the defendant emphasised its ten year history in this highly dangerous industry without an offence, its comprehensive system of safety both in documented form and in practice and the prompt steps taken to remedy the risk identified as a result of this incident as being reasons why there would be a lesser role for that consideration in the present matter. I accept that the defendant's safety system prior to this accident was impressive as was its safety record: there is no evidence here suggesting that the defendant was lax in relation to safety. In all the circumstances, I accept the defendant's submission and, while specific deterrence remains a consideration in setting an appropriate penalty, its role will be much reduced in this particular case. 30 There are a number of subjective factors to be considered. The defendant entered a plea of guilty after an Amended Application for Order was filed in Court by the prosecutor. The defendant is entitled therefore to a discount of 25 per cent for its early plea. While the defendant has a relatively recent history in the mining industry, having regard to the number of people employed in the inherently dangerous nature of that industry, it is to be considered as having a good safety record. The evidence suggested that safety record was not something that occurred by chance but because of the comprehensive nature of the safety systems in operation and the defendant's diligence in promoting and enforcing that system. The defendant appeared to be also a good corporate citizen involved, to a significant degree, in the affairs of the community surrounding its various mining operations. Its plea of guilty, the steps taken immediately after the accident involving Mr Strong, the support given to employees including Mr Richards of Marathon Tyres, the nature of the remedial steps taken, the support offered to Mr Strong's family and the statements of regret and expressions of condolence put forward in evidence by senior officers of the defendant demonstrate the defendant's contrition. It was also significant that the defendant co-operated with all the relevant authorities including the prosecutor in relation to this incident. These considerations are of importance and are to be taken into account in mitigating the severity of the penalty. 31 Having formed the view that the plea of guilty was properly entered and that the defendant should be convicted of a breach of s 8(2) of the Act, it is then necessary to deal with the Victim Impact Statements from Mr Strong's family, submitted by the prosecutor. These statements were identical to the statements submitted in the related proceedings involving Marathon Tyres, and I repeat for the purposes of these proceedings what was said in Marathon Tyres: These statements from close family members show the many ways they are affected by this tragedy. No one outside the family can fully appreciate the deep sense of grief that follows such an event, yet the statements powerfully expressed the feelings of loss and questioning that naturally arise when a family member is taken in a workplace accident. The Court extends its sympathy to the members of the family who were moved to make the Victim Impact Statements, a task that obviously caused continuation of much pain and anger at a senseless loss. Having regard to the contents of the statements I do not, however, propose to consider them in connection with the determination of the punishment to be imposed on the defendant. 32 In the related matter of Marathon Tyres, I have determined that a penalty of $ 135,000 be imposed. In fixing that penalty I have had regard to the maximum penalty of $825,000 and the nature of the offence that led to the higher penalty range becoming available for consideration. In the absence of differences, including subjective factors, I would impose the same penalty on both defendants having regard to the fact that the charges under s 8(1) and s 8(2) reflect the same duties with the status of the employees at risk being the defining difference. It has been suggested in submissions that consideration of the higher penalty range in relation to Marathon Tyres requires the imposition of a higher penalty and that Rio Tinto's penalty should be lower, reflecting a lower penalty range as a maximum and the leniency usually available to first offenders. I am unable to accept these propositions. Marathon Tyres' previous offence was heard by the Chief Industrial Magistrate where the maximum penalty was $550,000 although there was a jurisdictional limitation of $55,000. Although finding a serious offence had been committed by Marathon Tyres, his Honour described the breach, being its first offence in over 30 years of operation, as being "an aberration" in the light of the substantial and impressive evidence relating to the company's occupational health and safety policies and its prompt extensive and appropriate actions in addressing the risk exposed by the accident. The nature of the offence was quite removed from the nature of the incident involved in these related proceedings before the Court, and I would adopt his Honour's expression that Marathon Tyres' record was outstanding and demonstrated that it was not an employer that was cavalier or indifferent to its obligations under occupational health and safety legislation. 33 From this material it may be discerned that Marathon Tyres does not present as a serial re-offender or a company that has re-offended in such a way that suggests that it is likely to re-offend again, or that some additional element of the penalty should be directed to correcting a disturbing trend in occupational health and safety breaches. To merely impose a higher penalty on Marathon Tyres because it had offended previously without having regard to the nature of that offence and whether, according to orthodox sentencing principles, that offence warranted the imposition of a further particular penalty, is to penalise the company again for its previous conviction. It is to be acknowledged that s 21A(2) of the Crimes (Sentencing) Procedure Act 1999 recognises that an aggravating factor to be taken into account in determining an appropriate sentence for an offence includes the fact that the offender has a record of previous convictions. In Regina v Brett Raymond Walker [2005] NSWCCA 109, Johnson J, speaking for the Court, said at paragraph [27]: Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing as would be contrary to any Act or rule of law to do so. It has been held that the effect of s 21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32 - 37; R v Wickham [2004] NSW CCA 193 at paragraph 24. In R v Shankley[2003] NSWCCA 253, Howie J expressed the principle in Veen (No 2) as follows (paragraph 31): The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted' . 34 There is nothing in the terms of s 12 of the Occupational Health and Safety Act to indicate that these longstanding principles do not apply, or that a previous offender must have a proportionately higher penalty in relation to the same circumstances involving a first offender and that the penalty should bear at least some relationship as does $550,000 to $825,000. To set a penalty on that basis would be to apply a mathematical approach, itself an approach contrary to proper sentencing principles (see for example, Markarian v R (2005) 79 ALJR 1048 especially per McHugh J at [65]). While s 12 will require consideration to be given to the maximum penalty, it will not impinge upon the broad sentencing discretion such as to automatically require the imposition of a higher penalty and the Court will, as always, be required to give consideration to the nature of the previous offence and the objective seriousness of the current offence. Approached on that basis, I am satisfied that the penalty in this matter regarding the breach by Rio Tinto should be the same as the penalty imposed on Marathon Tyres. 35 The evidence and submissions in this case have raised a number of considerations and, having regard to those matters, the Court makes the following orders: (1) The defendant is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 2368 of 2006 to which it entered a plea of guilty. (2) The defendant is fined the sum of $135,000 with half that amount to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE STATEMENT OF AGREED FACTS 1. At all material times, the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter. 2. At all material times, the defendant, Rio Tinto Coal (NSW) Pty Limited [ACN 075 612 216], was a company duly incorporated with its registered office located at Level 3, West Tower, 410 Ann Street Brisbane in the State of Queensland. 3. At all material times, the business conducted by the defendant was to employ persons to manage Mount Thorley Operations/Warkworth Mining. 4. Mount Thorley Operations/Warkworth Mining is the integration of two open cut coal mines located at Putty Road, Mount Thorley via Singleton in the State of New South Wales ("the Mine"). 5. At all material times, the defendant was an employer, employing persons who worked at the Mine. 6. At all material times the Mine was a place of work. 7. Marathon Tyres Pty Limited ("Marathon Tyres"), by agreement, provided services to the defendant. These services included the on site change of earthmover tyres and rims and subsequent disassembly and repair of the tyres and rims by Marathon Tyres at the Mine ("the service agreement"). The Incident - 28 May 2004 8. On 28 May 2004 Mr Paul Strong was working at the Mine with Mr Jason Richards, both of whom were employed by Marathon Tyres. 9. Mr Strong commenced employment with Marathon Tyres on 9 August 2000 and was employed on a full time basis. 10. As at 28 May 2004 Mr Strong's qualifications included Heavy Vehicle Driver Licence; WorkCover Authority of NSW OHS Certification Class CV – Vehicle Loading Cranes and Class LF – Forklift General. He had also been assessed as competent to perform Lockout Isolations at the Mine. 11. Mr Richards commenced employment with Marathon Tyres in about March 2003 and was employed on a full time basis. 12. As at 28 May 2004 Mr Richard's qualifications included WorkCover Authority of NSW OHS Certification Class CV – Vehicle Loading Cranes and Class LF – Forklift General. He had also been assessed as competent to perform Lockout Isolations at the Mine. 13. On 28 May 2004 Mr Strong and Mr Richards had completed a service task in the workshop, at the Mine, when they were requested by their foreman Mr Robert McLennan, employed by Marathon Tyres, to attend the vehicle service bay of the Mine to change a tyre on the rear right of a Komatsu 730E earthmover truck. The equipment number of this truck was 748 ("the 748"). This request was within the service agreement between the defendant and Marathon Tyres. 14. The 748 had six tyres in total, these were positioned as follows: (a) Front left – one tyre (referred to as position 1); (b) Front right – one tyre (referred to as position 2); (c) Rear left – two tyres (outer tyre referred to as position 3, and inner tyre referred to as position 4); and (d) Rear right – two tyres (outer tyre referred to as position 6, and inner tyre referred to position 5). 15. The tyre changing task was to be performed: (a) using a Volvo service vehicle owned and maintained by Marathon Tyres, with a tyre handler attached at the rear ("the service vehicle"). The tyre handler was a crane designed with arms and grabs specifically for handling tyres; and (b) by two persons attending to the task, referred to as a Tyre Handler Operator and a Tyre Fitter. 16. The tyre handler on the service vehicle could be operated by fixed controls, located on the left-hand side of the service vehicle, or by a remote control. 17. On 28 May 2004 Mr Strong and Mr Richards reverse parked the service vehicle perpendicular to the right rear tyres of the 748. 18. Mr Strong was performing the duties of the Tyre Handler Operator and using the remote control to operate the tyre handler. Mr Richards was performing the duties of the Tyre Fitter. 19. The task request was to fix a flat tyre on position 6 but in fact the job required removing and replacing position 5 and position 6 tyres as the tyre at position 5 was a different tread. The tyres at position 5 and position 6 were approximately 3.5 metres in diameter, 0.99 metres wide and 4 tonnes in weight including the rim. 20. The position 5 and position 6 tyres were demounted, removed from the rims and new tyres refitted to both rims. The position 5 tyre was then remounted. On attempting to remount the position 6 tyre difficulties were encountered. Mr Strong requested Mr Richards retrieve some timber blocks to place on the ground to enable Mr Strong to lay the tyre horizontal, on top of the blocks, and then release and reposition the tyre grabs. 21. Mr Strong was standing facing the rear right hub of the 748 and with his back to the rear of the service vehicle whilst attempting to place the position 6 tyre on the hub, using the remote control. It would appear that Mr Strong then moved the position 6 tyre away from the 748 and rotated it towards the horizontal. Ultimately he was pinned between the tyre and the rear of the service vehicle. 22. When this happened Mr Richards was retrieving timber blocks and did not witness the incident. 23. As a result of the incident Mr Strong suffered fatal injuries. 24. During part of the tyre change Tyre Handler Operators, at times, stood between the tyre handler and the service vehicle when the tyre was held in the vertical position because they needed a high level of visibility to line up the wheel and the hub so as to ensure components such as brake lines and tyre valves were not damaged while the tyre was being moved over the hub. 25. Prior to 28 May 2004 there were two separate occasions where persons were crushed in pinch points whilst operating a Vehicle Loading Crane (VLC) which had a hook attached to the jib. These incidents occurred at sites, not associated with the defendant, in Queensland and South Africa. Consequently the defendant implemented a proactive approach to the use of VLCs which had a hook attached to the jib. Systems of Work 26. On 28 May 2004 Marathon Tyres had in place a Safe Work Procedure for the 'Removal and Replacement of Earthmover Tyre and Rim on Rear with Tyre Handler' (SWP 4-04-005). This was the task being performed by Mr Strong and Mr Richards at the time of the incident. 27. SWP 4-04-005 indicated where the Tyre Fitter should stand but did not indicate where the Tyre Handler Operator should or should not stand when operating the remote control of the tyre handler. 28. SWP 4-04-005 did not indicate that the Tyre Handler Operator was at risk of being struck and/or crushed by a tyre handler and/or its load when standing between the tyre and the service vehicle, while the tyre handler was not isolated. 29. Subsequent to 28 May 2004 Marathon Tyres put in place a system which defined a "no go zone" and used barriers to prevent entry into that zone. Co-operation 30. The defendant has co-operated with the Department of Primary Industries during the course of the investigation, Coronial Inquest and prosecution. Costs 31. The defendant agrees to pay the Prosecutor's costs as agreed or assessed. 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