Industrial Court of New South Wales CITATION: Morrison v P & H Minepro Australasia Pty Ltd [2009] NSWIRComm 144 Rodney Dale Morrison (Prosecutor) PARTIES: P & H Minepro Australasia Pty Ltd (Defendant) FILE NUMBER(S): IRC365 of 2008; IRC366 of 2008 CORAM: Boland J President OCCUPATIONAL HEALTH AND SAFETY – sentencing – prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 – mining industry – crush injury, broken bone, severing of digit and bruising – guilty plea – use of heavy and large machinery – defendant performing work at mine site – inadequate risk assessment and systems – foreseeable risk of injury – remedial steps – objective and subjective factors in sentencing – utilitarian value of guilty plea – contrition and remorse – principle of totality – penalties imposed – costs – moiety to the prosecutor. CATCHWORDS: SENTENCING – occupational health and safety – prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 – mining industry – crush injury, broken bone, severing of digit and bruising – guilty plea – use of heavy and large machinery – defendant performing work at mine site – inadequate risk assessment and systems – foreseeable risk of injury – remedial steps – objective and subjective factors in sentencing – utilitarian value of guilty plea – contrition and remorse – principle of totality – penalties imposed – costs – moiety to the prosecutor. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment Act 2007 Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610 Inspector Hugh Corner v Hastings Hire Pty Ltd and Inspector Corner v John Avalon Barrie Shevlin [2008] NSWIRComm 63 Inspector Ken Evans v Country Energy [2006] NSWIRComm 29 Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Inspector Martin Carmody v Leighton Contractors Pty Limited [2004] NSWIRComm 332 CASES CITED: Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 Inspector Michael Dall v Gregory Banks & Jeffrey Britton [2006] NSWIRComm 216 Inspector Michael Kent v Sherrin Hire Pty Limited [2005] NSWIRComm 356 Inspector Neil Simpson v Carrst Pty Limited (formerly known as Carrington Steel Pty Ltd) [2007] NSWIRComm 302 Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 9 Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243 WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 WorkCover Authority of NSW (Insp Bourne) v Delta Pty Limited [2000] NSWIRComm 67 HEARING DATES: 12 August 2009 DATE OF JUDGMENT: 31 August 2009 Mr P M Skinner of counsel (Prosecutor) Crown Solicitor LEGAL REPRESENTATIVES: Ms W G Thompson of counsel (Defendant) Deacons Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Monday 31 August 2009 Matter No IRC 365 of 2008 RODNEY DALE MORRISON v P & H MINEPRO AUSTRALASIA PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 366 of 2008 RODNEY DALE MORRISON v P & H MINEPRO AUSTRALASIA PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 144 1 These two prosecutions of P & H Minepro Australasia Pty Ltd under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 arise out of an incident that occurred on 21 March 2006 at the defendant's place of work at the Bulga Open Coal Mine near Singleton, New South Wales. 2 Two workers, Colin Frederick Belle, a leading hand fitter employed by the defendant, and Andrew William Baxter, an engineering rigger employed by Ellavale Engineering Pty Limited, were engaged in the replacement of hoist ropes on a P & H 4100 Shovel. In order to perform the task the two workers were using an Elevated Work Platform ('EWP'). As the two workers were undertaking the task, Mr Belle placed his foot on the 'deadman' pedal of the EWP and the 'man-basket' in which the two men were situated was forced against the bucket of the Shovel in such a way that it trapped Mr Belle. He suffered bruising to his right foot. Mr Baxter suffered a pinch/crush injury to his right index finger, severing the tip and breaking the bone. With some difficulty, the two men were eventually removed from the man-basket and transported to hospital. 3 It was alleged in the applications for order pursuant to s 246 of the Criminal Procedure Act 1986 that the defendant failed to ensure the safety of Mr Belle and Mr Baxter. The particulars of each charge were similar. In Matter No IRC 365 of 2008 it was alleged in the amended application for order: (a) The defendant failed to ensure that plant provided for use at work by Mr Belle and his fellow worker Mr Andrew William Baxter was safe and without risks to health when properly used. An aspect of the defendant's failures was the following: (i) The EWP provided had a faulty Drive Joystick. (b) The defendant failed to ensure that systems of work used by the said Mr Colin Fredrick Belle were safe and without risks to health. Aspects of the defendant's failures were any of the following: (i) The defendant did not ensure that a level and well graded pad for operation of the EWP was provided. (ii) The EWP was not operated by Mr Belle and/or Mr Baxter in accordance with the Operator's Manual. (iii) The defendant did not ensure that an adequate risk assessment of the task to be undertaken by Mr Belle and Mr Baxter was carried out. (c) The defendant failed to provide to Mr Belle or Mr Baxter such information and instruction as was necessary to ensure the health and safety of Mr Belle. As a result of the defendant's failures Colin Fredrick Belle was placed at risk as to his health and safety, and received injuries. 4 In Matter No IRC 365 of 2008 it was alleged in the amended application for order: (a) The defendant failed to ensure that plant provided for use at work by by Mr Baxter and his fellow worker Mr Colin Frederick Belle was safe and without risks to health when properly used. An aspect of the defendant's failures was the following: (i) The EWP provided had a faulty Drive Joystick. (b) The defendant failed to ensure that systems of work used by Mr Baxter and Mr Belle were safe and without risks to health. Aspects of the defendant's failures were any of the following: (i) The defendant did not ensure that a level and well graded pad for operation of the EWP was provided. (ii) The EWP was not operated by Mr Belle and/or Mr Baxter in accordance with the Operator's Manual. (iii) The defendant did not ensure that an adequate risk assessment of the task to be undertaken by Mr Baxter and Mr Belle was carried out. (c) The defendant failed to provide to Mr Baxter or Mr Belle such information and instruction as was necessary to ensure the health and safety of Mr Baxter. As a result of the defendant's failures Andrew William Baxter was placed at risk as to his health and safety, and received serious injuries. 5 The defendant pleaded guilty to the charges. Evidence 6 The prosecutor's evidence consisted of a bundle of documents comprising: 1. Statement of Agreed Facts. 2. Photographs of the EWP and aspects of the incident. 3. Maintenance Contract for P&H 4100 Shovel between P&H MinePro Australasia Pty Ltd and Bulga Coal Management Pty Ltd dated 31 August 2002. 4. Operator's Manual found with EWP on 21 March 2006 and Maintenance Logbook. 5. Operator's Manual for JLG Models 80HX and 80HX +6. These were models of the EWP. 6. Toolbox meeting minutes dated 21 March 2006. Under the heading 'Risk Hazard Analysis there was no entry and under the heading 'Training' it was stated: 'Ensure you have had prescribed Training for each task'. There was no entry under this heading notwithstanding that Mr Belle was not properly trained in the operation of the EWP. 7. Memo sent from Michael George re Shovel Service dated 16 March 2006. It was noted that Mr George requested 'a level and well graded Pad for people movements and to work on the crane.' 8. Bulga Coal Work Procedure. The procedure called for the use of a '40 foot EWP' but what was provided was an 80 foot EWP. 9. Extracts of P&H MinePro Environmental Safety & Health Policy. This provided, inter alia, for instruction of personnel and particularly specified that EWPs shall only be operated by trained and qualified personnel 10. Bulga Site Safety Management Plan. This provided that all personnel operating cranes, forklifts and manlifts, etc shall hold the relevant WorkCover Certificates of competency for the function or they shall be in training for that certificate under direct supervision as per WorkCover training procedures 11. Report Prepared by Gwyn Richardson, JLG Industries Australia dated 7 June 2006. Mr Richardson carried out testing on the EWP and found that the controller slide lock mechanism on the drive controller or 'drive joystick' was jamming. Otherwise the machine operated reliably. The controller was disassembled and revealed a bent centre shaft as being the cause. Relevantly, the report noted that the slide lock did not affect the operation of the controller but would prevent the controller from being locked and thereby prevent any inadvertent operation when it was returned to the centre off position. There was a reference in the report to the action taken by the operator and an opinion that for the engine to go to high engine RPM three conditions must be met ie., the joystick is moved into the forward or reverse direction, the high engine toggle switch is on and the boom is placed at or below the horizontal position. The report discounted the any electrical wiring discrepancy as the cause for the inadvertent movement of the EWP. 12. Records of prior convictions. The defendant had three prior convictions. 7 Counsel for the defendant, Mrs W Thompson, tendered an affidavit of Mark Richard Elder, the defendant's Director, Human Resources. In his affidavit, Mr Elder dealt with: the contract between the defendant and Bulga Coal to carry out certain maintenance works and services on a P&H MinePro 4100 Shovel at the site; the incident and personnel involved in the incident; pre-incident safety procedures; post-incident steps taken by the defendant to prevent a recurrence; the defendant's commitment to occupational health and safety; the defendant's environment, health and safety management system; the defendant's approach to social responsibility; cooperation with the investigating authority; and contrition. 8 The agreed facts provided a description of the incident and the failures of the defendant to ensure safety: Incident - 21 March 2006 13. On 21 March 2006 Mr George commenced work at about 6:00am. Mr Colin Belle, a Leading Hand Fitter employed by the offender, arrived at the Shovel work area at about 6:30am. Mr Andrew Baxter, an Engineering Rigger, employed by Ellavale Engineering Pty Limited arrived at about the same time. Mr Baxter was supplied as shift-replacement labour hire to the offender. 14. At about 7:00 to 7:15am Mr George conducted a toolbox session with the whole crew which consisted of about 20 persons from the offender, Ellavale Engineering Pty Limited and other contractors. 15. The toolbox session discussed the tasks to be done and pre-prepared risk assessments (Job Hazard Analysis ("JHA")) were handed out to the various groups for the job they were to undertake. The relevant risk assessment or JHA for "Replace Hoist Ropes" was given to Mr Baxter, Mr Belle and Mr Greg Makin (Ellavale Engineering Pty Limited Crane Driver/Leading Hand Fitter), who constituted ("the hoist rope crew, and they") who were instructed by Mr George to "…modify JHA as required...". 16. The Shovel was positioned at or near the prepared Shovel work area and machine isolations were performed. Mr George then went back to the crews and reviewed the JHA's, with any modifications noted on the sheets, the hoist rope crew signing theirs. 17. As the Shovel service began, Mr George went back to the hoist rope crew of Baxter, Belle and Makin and updated the Work Procedure with them. Mr Belle and Mr Baxter were allocated the bucket part of the Shovel maintenance job while other workers were allocated to the Shovel house drum tasks. 18. Sometime after this Mr Baxter went to the EWP and completed the "safety check" or "103 Inspection". Mr Baxter used the Checklist on the "EWP Safety Check & Routine Maintenance Logbook" supplied with the machine to complete the 103 Inspection. Mr Baxter signed the Logbook at 8:30am and no faults or problems were recorded. 19. Mr Baxter then drove the EWP down to the bucket of the Shovel where Mr Belle took control of the operation of the EWP. Mr Belle then performed his own safety inspection prior to operation, including the operation of the platform control levers and locking mechanisms. Mr Belle did not sign the Logbook or record his inspection. Mr Belle and Mr Baxter discussed how they would do the job and commentedin the course of which they expressed some concerns about on the larger size of the machine (the EWP than specified in the Work Procedure of Bulga Coal Management Pty Ltd )but decided to proceed with the job in any event. Mr Belle then positioned the EWP about ½ metre from the bucket. 20. The rope change then commenced. The old ropes were removed with the EWP being used by Mr Belle and Mr Baxter to remove the rope retainers. The old ropes were dragged away from the Shovel using a "Franna" crane. 21. New ropes were then refitted to a point where they would need guiding into the bucket equalizer prior to refitting the rope retainers. At this point the EWP was some metres back from the Shovel bucket. Mr Belle and Mr Baxter got into the man-basket of the EWP. Mr Belle then drove the EWP towards the bucket and equalizer, stopping about 300-500mm from the bucket. Mr Baxter commenced sorting out the new ropes and the EWP was driven in and out to position the ropes correctly. The Critical Incident 22. The machine operated in two speeds – high and low. Mr Belle left it in high speed whilst he prepared to 'boom it up' or lift the boom to get him and Mr Baxter into position to deal with their task in respect of the ropes. This was in direct contravention to the clear instructions and cautions included in the Operators and Safety Manual ("the Manual") for the machine, when prescribing operations in close quarters 23. Sometime before 12.15pm Mr Belle placed his foot on the "deadman" pedal of the EWP whilst turning around to reach the boom lift-lever which moves the man-basket up and down. The machine propelled into the bucket equalizer crushing the man-basket door such that it prevented Mr Belle from releasing the deadman pedal and trapping him. 24. Mr Baxter suffered a pinch/crush injury to his right hand index finger, severing the tip and breaking the bone. Mr Belle received bruising to his right foot when the man basket door trapped it. Mr Belle, after several attempts, stopped the EWP using the emergency stop button located on the platform control panel. 25. Although several people in the immediate area heard the EWP high idle and the resulting impact, no one saw the incident occur. Mr George followed the site emergency procedures. Mr George and Mr Ron Thomson attempted to; firstly, lower the man-basket using the ground controls; and secondly, move the EWP away from the Shovel bucket. This was unsuccessful, as the EWP cannot be driven forwards or backwards from the ground controls. The decision was made to cut the handrail of the man-basket using oxy-acetylene equipment. Mr Baxter climbed out over the Shovel bucket with Mr Belle being removed once the handrail had been cut away and the EWP dragged back from the bucket with a dozer. 26. Both men were taken to the Bulga first-aid room, and then transported to Singleton Base Hospital for assessment. Mr Belle was released while Mr Baxter was taken to Maitland Hospital. Mr Baxter had surgery to repair his finger the next day. Plant and Systems failures 27. There were inadequacies and safety failures in the system for the work to be undertaken by Mr Belle, an employee of the offender, when operating the EWP. 28. The offender had in place an OHS policy "P&H MinePro ProSafe ES & H Management System" and a safety management plan for the mine "P&H MinePro Bulga Site Safety Management Plan". 29. Bulga Coal Management Pty Ltd had a Work Procedure for replacing hoist ropes including a Job Hazard Analysis (JHA) in which "unplanned movement of machine" was identified as a risk. 30. Despite a memorandum to Bulga Coal Management Pty Limited dated 16 March 2006 indicating that a "level and well-graded Pad for people movements and work on the crane" was required, this was not provided. 31. An oral risk assessment was undertaken in the toolbox talk that lasted about 15-20 minutes. 32. The toolbox talk occurred before the EWP arrived and was basic in scope. 33. The Work Procedure required a 40-foot boom but the one hired was twice the size at 80 foot. 34. Mr Belle did not realise the longer EWP was to be used until after the toolbox talk. 35. No additional information was provided regarding the safety of the EWP despite the fact that it was twice as large as the EWP specified in the JHA. 36. The operators were left to make their own amendments to the JHA before the task was undertaken. 37. A fully trained and mine appointed EWP operator was not used. Whilst Mr Belle held a Certificate of Attendance for EWP Operation, he did not have a WorkCover Certificate as required by the Bulga Contractor Safety Management Plan or the P&H MinePro ProSafe ES & H Management System. 38. The EWP was not operated in accordance with the Manual. An outdated Operator's Manual was provided with the EWP. 39. The "103 inspection" or "safety check" was undertaken by Mr Baxter, an Ellavale Engineering Pty Limited employee, rather than Mr Belle the operator and employee of the offender. The safety check was completed by Mr Baxter before Mr Belle arrived and took over the operation of the EWP. The safety check failed to identify that the current Operator's Manual for the EWP was not provided with the EWP. 40. The check also failed to identify a defect in the EWP namely the safety catch that prevents the Drive Joystick from moving from the neutral position was not working. Information and instruction 41. The offender failed to ensure that such information and instruction as was necessary to ensure the health and safety of Mr Belle was provided. 42. Mr Belle was not properly trained in the operation of the EWP. Whilst he held a Certificate of Attendance for EWP Operation, he did not have a WorkCover Certificate as required by the Bulga Contractor Safety Management Plan or P&H MinePro ProSafe ES & H Management System. 43. Although an employee of the offender at the time of the incident, Mr Belle had been an employee of Bulga Coal Management Pty Limited when he attended a one-day EWP course in December 1998. The Certificate of Attendance was issued even though (the then) Bower's Crane (later Boom Logistics) trainer had noted that Mr Belle had not achieved the required competency and required reassessment in the new year. No record was found of re-testing. Mr Belle was recorded in the Bulga training records as a competent EWP operator. 44. Mr Belle left Bulga Open Cut in 1999 and returned as a contractor, working for the offender, in 2002. Even though Mr Belle returned as a contractor, no appointment was made by the Mine Manager in regard to Mr Belle being competent to operate EWPs. The entry for Mr Belle in the Track Easy system, as an employee, was taken as being sufficient to demonstrate his competency. No review or audit was undertaken by Bulga Coal Management Pty Limited or the offender against the requirements of the safety management systems or the maintenance contract. 45. If the training, assessment and appointment process had been effective and followed, then the risk of Mr Belle not properly using the EWP would have been reduced. 46. The toolbox talk occurred before the EWP arrived and was basic in scope. 47. Mr Belle did not realise the longer EWP was to be used until after the toolbox talk. 48. No additional information was provided regarding the safety of the EWP despite the fact that it was twice as large as the EWP specified in the JHA. 49. Mr George left it to the workers to modify the JHA with little checking. Consideration 9 The risk to health and safety arose from the defendant's failure to ensure the EWP was safe when properly used, the systems of work used by Messrs Belle and Baxter to replace the ropes on the Shovel were not safe and there was a failure to provide the two men with the necessary information and instruction to operate the EWP safely. Those failures placed Mr Baxter and Mr Belle at risk of crush injuries whilst working in the 'man-basket' of the EWP. 10 The failure to ensure the EWP was safe to use arose from the fact that the EWP provided had a faulty 'Drive Joystick'. It seems possible that through a combination of the faulty joystick and the fact that Mr Belle had left the EWP in the high speed mode whilst preparing the new ropes for fitting, and at the same time the EWP only being a short distance from the Shovel, that this was the causa causans or immediate cause of the man-basket being slammed against the Shovel and causing the injuries to the two men. However, it is not entirely clear from the evidence that it was this combination that caused the accident and, in any event, it is the risk with which I am primarily concerned and not the direct cause of the accident. 11 It is clear that Mr Belle did not have his certificate of competency, which may be the reason he did not understand the very important requirement of having the machine in low speed in close proximity to the Shovel. As for the faulty joystick, the defendant pleaded guilty to the relevant particular. However, I take into account that the fault was not easily detectable and most probably could not have been picked up in the normal inspection process carried out prior to the machine being put to use. By taking it into account, however, does not translate into substantial mitigation, especially given the absence of an adequate risk assessment and the failure to provide the two men with the necessary information and instruction necessary to allow them to operate the EWP safely. 12 In assessing the objective seriousness of the offence I have had regard to the following: the systems used on the day were inadequate in that the level pad area requested by Mr George was not provided; the tool box talk was general in its scope; the EWP had not been delivered at the time of the tool box meeting; the work procedure provided by Bulga Coal referred to a 40 foot EWP; no additional information was provided about the 80 foot EWP provided; the operators made their own amendments to the Job Hazard Analysis; Mr Belle did not hold the formal qualifications to operate the EWP as required by both the Bulga Coal and the defendant's safety management systems; the operator's manual provided was out of date and the EWP was not operated in accordance with the manual; the 103 inspection was undertaken by Mr Baxter, not Mr Belle; the out of date manual was not detected; and the EWP provided had a faulty drive joystick. In addition, the defendant failed to adequately satisfy itself that Mr Belle was competent to operate the EWP. 13 In combination, these failures put Mr Belle and Mr Baxter at serious risk. It should be remembered that the two men were working, close up, on a very large piece of machinery in a confined space in a basket at the end of the boom of the EWP. The control panel on the basket was behind them as they worked on the ropes. It seems to me there was the potential for accidentally bumping a control was ever-present as both men had their attention on the ropes. In any event, it was imperative that the operator of the EWP was familiar with and competent to operate the machine in circumstances where the operator's manual warned of the need to travel grades in low speed and not to use high speed in close quarters. 14 Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. The injuries sustained by the two men were not of the most serious kind but the operator's manual warns of the dangers of a person being trapped between the basket of the EWP and solid objects. In Inspector Melissa Chaston v Sacco Builders Pty Ltd and Others [2008] NSWIRComm 152 the operator of an EWP became stuck between a purlin and the boom lift platform's hand safety rail. The operator subsequently fell from the platform. He died due to the combined effects of head injury and asphyxia. And whilst it was not clear whether being caught between the platform and the purlin or the fall killed the operator, that tragic incident demonstrates the serious risk associated with working on EWPs. 15 As to the question of foreseeability, that the two men might be placed at risk was, of course, why the defendant took steps, albeit inadequate, to guard against a risk arising, so the risk was foreseeable. It was readily foreseeable that in circumstances where the basket was required to be in close proximity to the Shovel that if the basket was propelled at high speed the occupants of the basket might suffer crush injuries or be thrown from the basket or both. It was not necessary for the defendant to have foreseen the exact nature of the risk. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred: Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [369]. 16 The remedial steps taken by the defendant following the incident indicate that there was nothing to prevent those measures being put into place prior to the incident. The measures were: (i) The Defendant established a comprehensive risk assessment tool for use of EWPs which included a number of controls identified as a result of the Defendant's investigation into the incident, focusing on the following; (a) unplanned movement of the propel system; (b) only one operator controlling the EWP without performing other tasks; (c) strict adherence to using the hydraulic extension when within 2 metres from the access area; and (d) strict adherence to using the "slow' mode when within 6 metres from the access area. (e) requirement for Supervisor / Leading Hand to sign off on all EWP risk assessments (ii) Careful consideration required on selection of suitably sized EWP; (iii) Toolbox talks for all P&H crew regarding the incident and the use of the risk assessment tool, and (iv) Establishment of a computerised data base for access to risk assessments. 17 Operating, and working from, an EWP is not a straightforward task unattended by significant risks. The incidence of prosecutions in this jurisdiction associated with EWPs demonstrates the dangers involved. See, for example: Sacco Builders; Inspector Hugh Corner v Hastings Hire Pty Ltd and Inspector Corner v John Avalon Barrie Shevlin [2008] NSWIRComm 63; Inspector Neil Simpson v Carrst Pty Limited (formerly known as Carrington Steel Pty Ltd) [2007] NSWIRComm 302; Inspector Michael Dall v Gregory Banks & Jeffrey Britton [2006] NSWIRComm 216; Inspector Ken Evans v Country Energy [2006] NSWIRComm 29; Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 9; Inspector Michael Kent v Sherrin Hire Pty Limited [2005] NSWIRComm 356; Inspector Martin Carmody v Leighton Contractors Pty Limited [2004] NSWIRComm 332; WorkCover Authority of NSW (Insp Bourne) v Delta Pty Limited [2000] NSWIRComm 67. 18 I shall, therefore, include in the penalty an element for general deterrence in accordance with the approach laid down in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610. 19 Because the defendant continues in business in the provision of mining equipment and services to the mining industry - an industry not without risk - the penalty should reflect an element of specific deterrence in accordance with Capral Aluminium. In this context, I have also had regard to the defendant's prior convictions, of which there are three, spanning the period 2003 to 2005. The 2005 conviction related to a breach in 2002. These latest prosecutions relate to offences committed in 2006. Given the dangerous nature of the industry in which the defendant operates the record could not be described as bad and I do not regard it as indicative of a propensity to re-offend, although any further contraventions may alter that assessment. 20 I note the maximum penalty for each of the offences is $825,000. 21 Having regard to all of the foregoing objective considerations, I have concluded that this is a mid range offence. What avoids it being at the higher end of that range in terms of objective seriousness is that the defendant was aware of its obligations under the occupational health and safety legislation, and had in place a reasonably sophisticated system of policies and procedures to meet its obligations. A summary of the system in place at the time of the incident was set out in the affidavit of Mr Elder. In relation to pre-incident safety procedures Mr Elder deposed: In the lead up to 21 March 2008 (the date of the Incident) the task of replacing the hoist ropes on the Shovel was assessed and significant pre-planning took place. The planning involved a process of consultation and assessment with the involvement of both the Defendant's personnel and employees of Bulga Coal. Prior to the Incident, Michael George had prepared a memorandum on 16 March 2008 regarding dragline and shovel maintenance tasks in relation to the tasks to be undertaken on 21 March 2006…. A written safe work procedure entitled "Replace P&H Shovel Hoist Ropes" and a risk assessment was prepared on 21 March 2006. Immediately prior to the commencement of the task, Mr George held a tool box talk at which he outlined the risks of replacing the Shovel hoist ropes to all personnel that were to be involved in the task. After the tool box talk, a written job specific risk assessment was completed for the task of replacing the hoist ropes. This risk assessment was prepared and signed by Andrew Baxter, Colin Belle, Michael George, Greg Makin and other workers at the Site…. This procedure was intended specifically to protect persons from injury or damage to equipment whilst replacing Shovel Hoist Ropes. The procedure outlined the specific equipment required and detailed the preparations necessary to safely perform the task. The equipment required for the task included an Elevated Work Platform (EWP). In accordance with the safe work procedure, a "103 inspection" had to be carried out on the EWP before it could be used. After the tool box talk, Mr Baxter carried out the 103 inspection on the EWP by using the checklist in the "Safety Check & Routine Maintenance" logbook that was supplied with the EWP. The 103 inspection did not identify any faults with the EWP and Mr Baxter signed the logbook at 8:30am on 21 March 2006…. After he completed the 103 inspection, Mr Baxter drove the EWP down to the Shovel. As Mr Belle was the more experienced employee, he then took control of the operation of the EWP. Mr Belle performed his own independent safety inspection of the EWP before using the EWP to commence the rope change procedure. A task safety checklist was also completed on 21 March 2006…. Following the Incident, the Defendant followed existing site emergency procedures and took measures to ensure that Mr Baxter and Mr Belle each received immediate first aid treatment. 22 Relevantly, at the time of the incident the defendant also had an 'EHS Management System Framework' designed to manage occupational health and safety and which included relevant policies, procedures and protocols. 23 Turning to subjective considerations, there are a number of these to be assessed. First, guilty pleas were entered, although not before legal argument relating to an issue of legal professional privilege was dealt with by Staff J (Morrison v Bulga Coal Management Pty Ltd [2008] NSWIRComm 243) and not before the application for orders were amended. Once amended charges were laid it may be accepted the defendant pleaded guilty at the earliest opportunity. The prosecutor did not gainsay this. 24 The decision by Staff J on legal professional privilege was given on 19 December 2008. In that decision, his Honour held that documents sought by the defendant were not to be produced on grounds of privilege. On 13 March 2009, following three directions hearings before his Honour that were stood over, the prosecutor sought leave, and leave was granted, to file amended applications for order, following which the defendant entered pleas of guilty. 25 When one compares the original charges with the amended charges the amendments were: deletion of a particular alleging that the EWP supplied was unsuitable because it had an 80 foot boom; deletion of three sub-particulars concerning an allegation of failure to ensure safe systems of work; and deletion of allegations in the particulars that the defendant failed to provide such training and supervision as was necessary to ensure health and safety. Allegations relating to a failure to provide necessary information and instruction were sustained. 26 Having regard to what I said about discounting for the utilitarian value of a guilty plea in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 I am of the view that a discount of 25 per cent should not be applied. It seems to me there was an opportunity for the defendant to enter pleas to the charges earlier than what it did and to reserve for negotiation with the prosecutor the particulars with which it was concerned. The amended charges did not, in my opinion, represent significantly less serious offences than what were originally pressed. 27 On the question of contrition Mr Elder stated, 'The Defendant is genuinely contrite in respect of the Incident.' However, it may no longer be sufficient for a corporate defendant in this jurisdiction to simply say it is contrite or remorseful. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provided that remorse may only be taken into account as a mitigating factor, if the following conditions are met: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) 28 In WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 at [39] it was said that an express statement of remorse or contrition by someone duly authorised to make such a statement on behalf of a defendant may be evidence of contrition, although any statement must be assessed in light of the defendant's conduct. That decision was, of course given prior to the amendment to the Crimes (Sentencing Procedure) Act that introduced s 21A(3)(i) in it current form (Crimes (Sentencing Procedure) Amendment Act 2007 effective 1 January 2008). 29 In addition to Mr Elder's statement of contrition there is, indirectly, evidence of remorse: the defendant pleaded guilty and has taken steps to avoid a recurrence of the incident in which the two men were injured. To the limited extent that evidence indicates remorse I have taken it into account. However, I am disinclined to believe that a mere statement on behalf of a corporate defendant of contrition is 'evidence' that a defendant has accepted responsibility for its actions and has acknowledged any injury, loss or damage caused by its actions or made reparation for such injury, loss or damage (or both). 30 I accept the defendant fully co-operated with the investigation by the Department of Primary Industries. 31 The principle of totality arises for consideration. The two offences are essentially the same and there is no basis for concluding that one offence was less or more serious than the other. I have decided, having regard to the objective factors and the subjective considerations, that the penalty in Matter No IRC 365 of 2008 should be $320,000. That amount is discounted by 20 per cent for the utilitarian value of the guilty plea. In Matter No IRC 366 of 2008 the penalty should also be $320,000 with the same amount of discount, namely, 20 per cent. Having regard to the totality principle, the total penalty, having regard to the overall criminality of the defendant, should be $260,000 making the penalty in Matter No 365 $130,000 and in Matter No 366, $130,000. Orders 32 The Court makes the following orders: (1) The defendants are found guilty and convicted of each offence. (2) In Matter No IRC 365 of 2008 the defendant is fined an amount of $130,000. (3) In Matter No IRC 366 of 2008 the defendant is fined an amount of $130,000. (4) In each case, one half of the fine is to be paid as a moiety to the prosecutor. (5) The defendant is to pay the prosecutor's costs, as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. ___________________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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