Industrial Court of New South Wales CITATION: Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 PROSECUTOR Inspector Patrick Legge PARTIES: DEFENDANT Intercast & Forge Pty Limited FILE NUMBER(S): IRC 734 of 2005 CORAM: Boland J CATCHWORDS: Occupational Health and Safety - Prosecution under section 8 (1) of the Occupational Health and Safety Act 2000 - Manufacturing industry - Employee fatally injured whilst attempting to fix hydraulic power press - Plea of guilty - Failure to provide safe system of work - Failure to provide training and supervision - Failure to carry out adequate risk assessment - Offence proven - Penalty imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 CASES CITED: R v Radich [1954] NZLR 86 R v Rushby [1977] 1 NSWLR 594 R v Way (2004) 60 NSWLR 168 Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited [1994] NSWIRComm 11 HEARING DATES: 09/05/06 DATE OF JUDGMENT: 05/26/2006 PROSECUTOR Ms P E McDonald of counsel Solicitor: Ms O Koudrina WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr D O'Neil of counsel Solicitor: Ms J Healy Phillips Fox JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Boland J Friday 26 May 2006 Matter No IRC 734 of 2005 INSPECTOR PATRICK LEGGE v INTERCAST & FORGE PTY LIMITED Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 182 1 Intercast & Forge Pty Limited ("the defendant") at 18–24 Abbott Road, Seven Hills, New South Wales, was in the business of manufacturing iron foundry products, steel and aluminium forgings and sintered powder metal products. The defendant employed Sione (also known as John) Tava as a machine operator/forge operator. 2 On 11 February 2003 Mr Tava was working on the afternoon shift. At about 5.00 pm Mr Tava was seen working at a 600 tonne hydraulic power press identified as Number 2 press, but he was not operating the press. Shortly thereafter, workers heard a loud noise and saw Mr Tava lying on the ground. Mr Tava was taken to hospital and died the next morning. He was found to have suffered skull fractures, brain injury, fractured left ribs and a lacerated left kidney. 3 The defendant was prosecuted by Inspector Patrick Legge of the WorkCover Authority of New South Wales under s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 In an amended application for order it was alleged that the defendant failed to: [E]nsure the health, safety and welfare at work of all its employees, and in particular, Sione Tava (also known as John Tava), contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are that the Defendant: (a) Failed to provide or maintain systems of work that were safe and without risks to health in relation to the maintenance of Number 2 600 tonne Hydraulic Power press; (b) Failed to provide adequate supervision of its employees undertaking or assisting in the undertaking of breakdown maintenance of Number 2 600 tonne Hydraulic Power Press; (c) Failed to provide such information, instruction, training in the maintenance procedures for the plant, namely Number 2 600 tonne Hydraulic Power Press, as may be necessary to ensure the health and safety at work of the employer's employees; (d) Failed to carry out an adequate risk assessment of the tool changing process for Number 2 600 tonne Hydraulic Power Press. 5 The defendant pleaded guilty to the charge in the amended application for order. 6 An agreed statement of facts was tendered. In relation to the breach of s 8(1) of the Act it was relevantly agreed as follows: 9 On 11 February 2003 the deceased was working on the afternoon shift, which commenced at about 3.10pm. 10 Generally the machine operators rotated to different machines each hour. 11 The deceased commenced work on Number 1 600 tonne power press (Number 1 press) with Mr Matekovic. He worked on Number 1 press for about half an hour. 12 Mr Waterhouse was working on Number 2 press. The punch of Number 2 press broke soon after Mr Waterhouse commenced work on it. Mr Waterhouse approached Mr Matekovic and told him the Number 2 press punch was broken. 13 Mr Matekovic said to Mr Waterhouse "undo the screws and take them out" . Mr Waterhouse did this. Mr Matekovic set up the punch and then operated the punch a few times. According to Mr Matekovic everything was alright (sic) with the punch so he walked away from the machine. 14 Mr Matekovic proceeded to Number 1 press to attend to a problem at the Number 1 press. He had to grind the punch so Mr Matekovic then went to the grinder, about 10 metres away from the Number 2 press. 15 At about 5pm the deceased was seen to be working at Number 2 press but not operating it. Mr Leaaetoa said " Then I went to 1200 [press], it was about 5.00pm. When I worked the 1200 I see John [the deceased] working at Number 2. It was not working. He was fixing it. I turn again to my machine and work. I turned again to John and he was still fixing it. I heard a noise. It was a new noise for me. Inside it is very noisy but this was a noise I had never heard before. I turned quickly, very quickly, 5 seconds or so. I turned right, turned my head right and I saw John on the floor on his stomach but his head was turned to me. I think he was 3 or 4 meters away from the machine" 16 Mr Tonee Waterhouse said that at about 5:15pm he was working on the overhead crane. He removed the empty hopper using the crane which was near the lathe and saw the deceased working on but not operating the Number 2. Mr Waterhouse assumed that the deceased had a broken punch and thought nothing of it. As Mr Waterhouse went to hook the overhead crane on the hopper he heard a bang and as he looked over to his right to where the sound came from he saw the deceased on the ground. ... 19 Immediately following the incident, Mr Matekovic observed that Number 2 press was in automatic mode. 20 No one witnessed the incident, however it would appear that the deceased had removed the four hold down bolts which were the bolts that held the bottom die hold-down plate in position. He had then levered the plate up out of its position using a crow bar and had turned it physically on its edge. Number 2 press then cycled and the machine pressed down on the bottom plate. The plate was propelled out of the machine under the full load of the press and it hit the deceased. 21 The number 2 press did not require isolation prior to the tool changing process as the press required to be moved up and down during the tool changing process. This was achieved by the use of controls on the operating control panel of the number 2 press. 22 At the time of the incident the Operating Control Panel of the Number 2 press contained the following controls; the manual/automatic switch which turned the press into manual mode or automatic mode depending on which position it was in (that is whether it was switched to the right of (sic - or) to the left); next to this switch there was the up button which took the press up; below this button was the down butting which took the press down. There was also an emergency stop button, which stopped the press stroke. 23 When the Number 2 press was in manual mode and the down button was pressed the press would inch down. When the Number 2 press was in automatic mode and the down button was pressed the press would stroke. 24 During the tool changing process on the Number 2 press the manual/automatic switch was to be turned to manual mode. ... 27 The tool setters had different procedures for changing broken tools on machines, however the tool changing process on a press machine was generally as follows: (a) the machine operator would notify the tool setter that there was broken punch; (b) the machine controls would be placed on manual; (c) the hold-down bolts would be undone; (d) the die hold down plate would be lifted onto its side by a crowbar; (e) the die hold down plate would be removed with a forklift; (f) the broken punch would be removed; (g) the broken tooling would be replaced; (h) the hold down plate would be placed back in position and the hold down bolts secured; (i) it was necessary to remove the guard to carry out the tool change; (j) the press would be brought over empty to make sure it lined up. It was then switched to automatic and tested; (k) the machine operator would then return to the machine and operate it. 28 All operators were trained on the job. Tool setters judged their competency to do certain tasks. 29 Mr Amadee, the defendant's General Manager – Sydney Operations, said the duties of the deceased as a forge operator were: " To operate a forging press and to assist toolmakers in some regard during die changes. " 30 During the afternoon shift it was the practice of the machine operators that they would assist the tool setters change the tooling on the number 2 press. With the tool setter present, the machine operators assisted by undoing and removing the hold down bolts and the hold down plate. The defendant was aware of this practice. 31 During the afternoon shift, if the tool setter was working on another machine, the machine operator would commence by himself to remove the hold down bolts. 32 The work practice developed as a result of the afternoon shift not having a designated fork lift driver. Unlike the morning shift if a forklift driver was needed to assist in the removal of the plate, the fork lift would have to be driven by Mr Matekovic or another employee who had the appropriate licence. 33 According to the Defendant's Skills Matrix dated December 2002 the deceased was competent to operate the press but was not trained and therefore not competent to change punches on the Number 2 press. 7 The agreed statement described the visit to the defendant's premises by the prosecutor and Inspector Terry Fouques on 12 February 2003 and what they found at the premises. Inspector Legge made the following observations: · Leaning against the small control enclosure was a length of yellow painted pipe and a large crow bar. Above the vertically mounted control enclosure on a mounted clipboard was a sheet of paper entitled "Checking Procedures JOB No: Tube Products". · There were four large socket screws with recessed hexagon heads lying on the top surface of the top bolster. · On the right side of the machine (from the front) was an orange painted control box located behind guard railing, which consisted of lengths of orange painted pipe. At the top right of this control box were two self-adhesive labels the combination of which indicated the number 22. Below this number was a large, two position control lever that was apparently capable of being locked. · Above and to the right of this control box was a permanently fixed information poster, which detailed the start-up and shut down procedure for the press. This poster was entitled "Start-up procedure". · On the left front of the raised metal, checker plate work platform was the bottom die. The die was approximately 355mm X 355mm square and 85mm high. The hole in the centre of the die was approximately 31 mm in diameter. The recessed area in the bottom surface of the die was approximately 235mm in diameter and 8mm deep. · Approximately 3900mm from the front of the rise and fall guard were two fresh looking gouges in the concrete floor. Approximately 4800mm from the front of the rise and fall guard were a number of linear marks on the concrete floor. · On a shelf to the left of the press was a broken punching tool. The punch was broken into three parts. When the parts were put together the following observations were made: (i) Engraved on one side of the punch was H300; (ii) The overall height of the punch was approximately 136mm. Its base was approximately 43mm in diameter and approximately 9mm high; (iii) The middle section of the punch was approximately 30mm in diameter and approximately 75mm high; (iv) The top section of the punch was approximately 20mm in diameter and approximately 52mm high. 8 On 12 February 2003 Inspector Legge served on the defendant three prohibition notices. On 20 February, Inspector Legge found the notices had been complied with. 9 The agreed statement also stated as follows: 48 Inspections and investigation revealed that prior to the incident on 11 February 2003: · there was no interlocking of the front rise and fall guard on the press to prevent the press operating in automatic mode with the guard disconnected and removed. · the Defendant had not carried out a risk assessment on the tasks of tool changing, undoing the hold down bolts or removing the hold down plate on the press. 49 Prior to the incident of 11 February 2003 the afternoon shift machine operators were aware of the steps to be taken in changing broken tooling, having assisted the tool setter in the procedure. 50 The Defendant had failed to ensure adequate supervision, information, instruction and training to ensure that once the machine operator had undone and removed the hold down bolts of the bottom die hold down plate the machine operators would not undertake the next steps in the tool changing process in the absence of the tool setter. 10 Other evidence in the proceedings tendered by the prosecution was: (1) Two Factual Inspection Reports jointly prepared by Inspectors Legge and Fouques on 18 and 20 February 2003. The first Report described the press and its operation. The second Report referred to checks made by the Inspectors in relation to compliance with the prohibition notices; (2) Thirty colour photographs of the incident scene; (3) A record of prior convictions showing no priors. 11 For the defendant, the affidavit of Kevin Robson was tendered. Mr Robson was the defendant's Site Manager. Mr Robson's duties included responsibility for occupational health and safety. Mr Robson deposed that he was familiar with the circumstances of the incident that occurred on 11 February 2003. In his affidavit Mr Robson described the history of the defendant and its operations. In relation to the incident Mr Robson deposed: The seriousness of the offence lies in the fact that an employee was allowed to go beyond the tasks that he was qualified to do. Having been an experienced operator, Mr Tava took it upon himself to go beyond the accepted practice of undoing the four bolts of the hold-down plate. The accepted practice on the afternoon shift, which normally occurred, was for the operator to inform the tool-setter of the situation, the tool-setter would then instruct the machine operator to undo the four bolts of the hold-down plate and then await the tool-setter's arrival. On some occasions, the operator may be asked by the tool-setter to remove the hold-down plate from the press using a forklift and place this plate on the floor under direct supervision of the tool-setter. 12 Mr Robson stated that the defendant recognised its duties before the incident, having conducted a risk assessment through Richard Oliver International on 24 November 1998. Recommendations within the risk assessment in relation to the Press (at a different location) had been complied with prior to the incident. 13 In relation to hazard identification resulting from the incident, Mr Robson said that the defendant had arranged for an external Occupational Health and Safety audit on 16-18 June 2003. Mr Robson also said a report was sought and provided by Allison Productivity Services Pty Ltd which reviewed the process of die changing and made recommendations to the defendant on 9 March 2003. 14 Internally, Mr Robson deposed that the defendant had reinforced its workplace consultation arrangements. Measures included: (1) Team meetings, held either weekly or fortnightly for all departments with a strong emphasis on safety and is always the first topic discussed. ... Monthly site meetings are also conducted and occupational health and safety remains the topic of primary importance discussed. (2) Housekeeping audits, carried out in all departments on a monthly basis by senior management and supervisors. All findings are recorded and results are tabulated. Audit sheets must be signed off by the supervisor and area manager to ensure accountability before being issued. Graphs are then generated and displayed on a team notice board for all to see and compare. Corrective actions are then undertaken if any deficiencies are found. ... (3) Safety audits, carried out in conjunction with the housekeeping audits on a monthly basis throughout all manufacturing departments by the Occupational Health and Safety Committees. The area supervisor or an operator normally accompanies the auditor. As with the housekeeping audits, all findings are recorded and the results tabulated. Audit sheets must be signed off by the supervisor and area manager to ensure accountability before being issued. Graphs are then generated and displayed on team notice boards for all to see and compare. Corrective actions are then undertaken if any deficiencies are found. ... (4) The housekeeping and safety audits have since been replaced by the adoption of the 'Stop' safety program. ... (5) OH&S Committee meetings are held monthly and consist of 6 shop floor employees, representing all areas and shifts and 3 from the management team (Group HR Manager, Manufacturing Manager and the OH&S Specialist). The OH&S committee constitution was prepared in consultation with shop floor employees and has been fully accepted by all parties and signed off. Minutes are taken and issued to committee members, management, and supervisors and displayed on all notice boards. 15 In addition, the defendant also issued to its employees a new General Safe Working Induction Handbook as well as an Employee Information Booklet. 16 In relation to risk assessment, Mr Robson deposed: An in depth risk assessment was carried out on the Press on about 27 March 2003 by a number of Forge key personnel targeting the tool setters and operators role. ... Further risk assessments were conducted and completed in a number of departments including Sinter, Lab, Forge training room, maintenance and mechanic shop during 2003, 2004 and 2005. For the area in which the incident occurred, total risk assessments since the incident numbered 25 for the period 2003 to date. Immediately following the incident concerning Mr Tava, a committee in addition and external to the safety committee was formed to review the incident and to improve the safety record on site. 17 Mr Robson said additional safety control measures have been introduced. These were described in his affidavit as follows: Physical control measures that have been implemented include major modification to the Press. Firstly, the control circuitry on the Press has been modified to put the press into stand-by mode after a period of inactivity of 20 sections, the press cannot be re-engaged unless this mode is physically changed back to automatic or manual mode. To get the Press out of stand-by mode, a person needs to physically make a decision to set it to automatic via a button that is separate from the other controls. Prior to the incident, the manual control panel and the automatic control panel were the same but are now two separate panels. The inching/cycle buttons were the same before the incident, now they have been separated. The front machine guard is interlocked into the Press such that operating the Press with the front guard down is not possible unless you have a tool-setter key. There is also an interlock-monitoring unit, which checks that all the interlocks are operational before you can do anything. There are now indicator lights to indicate whether the Press is in automatic or manual mode. 18 Since the incident, Mr Robson deposed that a number of safety operating instructions have been developed and implemented in consultation with employees including both tool setters and operators. These instructions have not only been introduced into the forge area but also to other manufacturing areas at the site. All current persons in the Forge area now have in manual form start-up instructions, operating instructions and tool changing instructions. 19 Mr Robson also stated that the defendant, in full consultation with maintenance crew, tool setters and operators, generated a lockout/tagout procedure. Training was given to all those in need and personal locks were issued to all employees. Lockout/tagout stations were purchased and displayed at prominent points throughout the site. 20 The defendant has not only has taken steps to improve workplace safety for its own employees but also for its contractors. A comprehensive procedure has been developed, issued and implemented for all contractors who are engaged to do work for Intercast & Forge on site. 21 Mr Robson said that injury statistics from January 2003 to March 2005 show a drop in lost time injuries and the frequency rate. The reduction in lost time injuries over the past two years peaked in June 2004 recording 312 consecutive days without a lost time injury. This has been followed by a further 174 consecutive days and to date 85 days. 22 In relation to monies expended by the defendant in connection with the breach Mr Robson deposed as follows: Shortly after the incident, the following monies were paid to the Tava family from Intercast & Forge: · Air fares Tonga to Australia & return for relatives: $7,500.00 · Funeral expenses $7,500.00 $15,000.00 A further $6,394.00 was collected from various employees around the plant and $1,000.00 was received from a supplier to Intercast & Forge, Dynaref Products. These monies were then forwarded to the Tava family in addition to the amounts set out in the preceding paragraph. Intercast & Forge also organised and paid for grief counselling for all Forge/Sinter employees including private sessions for 4 people. Payments in relation to such counselling totalled $2,500.00. On the date of the incident, employees were given the option to stay at work or go home and no production occurred throughout the entire forging or sintering departments. On the day after the incident, team meetings organised by supervisors with all employees were held across the site to discuss the incident. All employees were then offered to take the following day off with pay. The development of safe systems of work, including adequate skills training are steps that have been taken to ensure an unfortunate incident of this kind never occurs again. Intercast & Forge modified all plant at the site to eliminate any other latent risks to employee safety, including: · Modifications to electrical systems of the Press at a cost of $12,000. · Modifications to electrical systems of the No 1 600 Tonne Hydraulic Power Press at a cost of $12,000.00. · Modifications made to all other press interlocking systems after the incident at a cost of $6,000.00. · Modifications to other departments of Intercast & Forge upgrading the equipment in line with modifications carried out in the forging department at a cost of $5,000.00. This amounts to a total of $35,000.00 in modifications and upgrades on machinery operated by Intercast & Forge. Maintenance labour costs as a result of the time taken for the modifications totalled about $25,000.00 23 In conclusion, Mr Robson deposed: Intercast & Forge deeply regrets the unfortunate circumstances of the fatal incident concerning Mr Tava. Intercast & Forge recognises its responsibility for ensuring the safety of its workers. It believes that the steps it has undertaken to rectify the hazard will prevent an incident like this from ever occurring again. Furthermore, Intercast & Forge in recognising its over-arching responsibilities under the Act, has taken steps beyond the rectification of this incident, in order to be proactive in searching for the hazards that would be inherent within the industry. Intercast & Forge has a proud history as an industrial citizen with an unblemished record, and whilst it has learnt its lesson from the incident, looks towards the future in reinforcing its commitment to occupational health and safety for its employees and contractors. 24 Copies of all of the relevant documentary material referred to by Mr Robson in his affidavit were provided to the Court. Mr Robson was not required for cross-examination. Consideration 25 In the sentencing process in this jurisdiction there are a number of core matters (putting aside issues such as parity and totality, which will arise for consideration in individual cases) that must be consistently taken into consideration by the sentencing judge, in addition, of course, to those matters set out particularly in ss 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 and s 6 of the Fines Act 1996. As to the relationship between the core matters that have been developed in this jurisdiction and the matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act, it was stated in R v Way (2004) 60 NSWLR 168 at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 26 The core matters are as follows: (1) The maximum penalty for the offence: Careful attention should be given to the maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. (2) An analysis of the offending conduct with a view to determining the nature and quality of the offence: See Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475. This would involve an assessment of the seriousness of the breach. 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. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. (3) An identification of the risk and the degree of foreseeability of the risk. This is a significant factor to be taken into account when assessing the level of culpability of the defendant: See Capral Aluminium Limited at [81], confirming the approach taken by Walton J, Vice President, in Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 at 27. (4) Whether there were simple and straightforward remedial steps that were available, which could have avoided the accident. The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited [1994] NSWIRComm 11; Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275. (5) The need for general and specific deterrence: See Capral Aluminium at [71] to [80]. (6) Subjective considerations including such matters as a plea of guilty entered by the defendant, remorse, contrition, whether there are prior offences, cooperation with the investigating authority, measures taken by the defendant to prevent a re-occurrence of the breach, and assistance provided to any worker injured as a consequence of the breach: See Lawrenson Diecasting at 475. Maximum penalty 27 The defendant has no previous convictions under the relevant legislation. Accordingly, the maximum penalty in this case is $550,000: Section 12 of the Occupational Health and Safety Act; s 17 of the Crimes (Sentencing Procedure) Act. The offending conduct 28 As it was explained earlier, at about 5.00 pm on 11 February 2003, Mr Tava was seen to be working at Number 2 press but not operating it. Mr Leaaetoa said Mr Tava was "fixing" the press. Most likely Mr Tava was engaged in the process of replacing a broken punch on the press. No one witnessed the incident, however it was agreed that what appeared to have happened was that Mr Tava had removed the four hold down bolts that were the bolts that held the bottom die hold-down plate in position. He had then levered the 74-kilogram plate up out of its position using a crow bar and had turned it physically on its edge. Number 2 press then cycled and the machine pressed down on the bottom plate. The plate was propelled out of the machine under the full load of the press and it hit Mr Tava, thereby causing his death. 29 The press had a number of controls. It could be operated in manual or automatic mode by using the manual/automatic switch on the controls. Automatic mode was used in normal production operations whereby the press completed a full, 12-second cycle of operation. To commence another cycle a button needed to be pressed. In manual mode, each time a button was pressed the press would inch up or down (according to which button was pressed). Manual mode was usually used in maintenance operations including for the purpose of changing tools. 30 There was a photoelectric cell on each side of the working area of the press. The cells were approximately 830 mm long and their lower ends were approximately 710 mm from the concrete floor. Once an operator interrupted the light beam by moving into the range of the cells, the press would automatically stop. In order to re-commence the operation of the press after the photoelectric cell had stopped it, a button needed to be pressed. 31 It is simply not known how the press came to be activated. It would appear that Mr Tava would have to have stepped out of the range of the light curtain created by the photoelectric cells and pressed the start button whilst the press was in automatic mode. It may have been the case that the press was in automatic mode when he was working on it and thinking it was in manual mode when he stepped back from the light curtain, Mr Tava may have pressed the start button. But this is mere speculation. 32 The failures by the defendant constituting the breach were: A failure to provide or maintain systems of work that were safe and without risks to health; a failure to provide adequate supervision of its employees; a failure to provide such information, instruction, training in the maintenance procedures for the plant; and, a failure to carry out an adequate risk assessment of the tool changing process. 33 A practice had developed on the afternoon shift wherein the machine operators would assist the afternoon tool setter, Mr Matekovic, to change the tooling on Number 2 press. The practice was that with the tool setter present, the machine operators would assist by undoing and removing the hold down bolts and the hold down plate. During the afternoon shift if the tool setter was working on another machine, the machine operator would commence by himself to remove the hold down bolts. The defendant was aware of this practice. 34 Mr Tava was competent to operate the press but was not trained and, therefore, not competent to change punches on the Number 2 press. Mr Tava was not being supervised at the time he was working on Number 2 press at about 5.00 pm on 11 February 2003. Further, it was an agreed fact that the defendant had not carried out a risk assessment on the tasks of tool changing, undoing the hold down bolts or removing the hold down plate on the press. 35 In circumstances where there had been no risk assessment, no training in relation to changing punches on the press, no supervision and no instruction or system of work that prevented a machine operator from going any further than undoing and removing the hold-down bolts on a 600 tonne press, no other conclusion is open other than there was a comprehensive failure on the part of the defendant to ensure the safety of Mr Tava, amounting to a serious offence under s 8(1) of the Act. 36 The defendant called in aid Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143. That was an appeal from Ms P O'Shane, Local Court Magistrate sitting as an Industrial Magistrate. In a prosecution under s 15(1) of the Occupational Health and Safety Act 1983 her Honour gave the defendant the benefit of s 10 of the Crimes (Sentencing Procedure) Act. The Full Bench found her Honour had erred and made orders convicting the defendant and imposing a fine of $7,000. In doing so, the Full Bench observed at [15]: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. 37 The Full Bench noted with approval the observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 38 It is clear from Riley v Australian Grader Hire that a defendant's obligations under the Act to ensure safety are not diminished because of the error or negligence of an employee. However, error or negligence (or inadvertence, inattention, haste and even foolish disregard of personal safety) may reflect on the degree of culpability of the employer for the purposes of sentencing. 39 In this case, the defendant has pleaded guilty to failures to provide or maintain safe systems of work, to provide adequate supervision, to provide information, instruction and training, and to carry out an adequate risk assessment. Mr Tava was an experienced worker but he was not trained to change punches on the Number 2 press and he was not being supervised at the relevant time on 11 February 2003 when he was undertaking work beyond his competency. There was no evidence of any negligence on Mr Tava's part, nor that he was careless, inadvertent, hasty or acting in foolish disregard of his own safety such that I might take that into account in the defendant's favour. It would seem that there was an error on Mr Tava's part because the press could not have restarted in automatic mode without the switch being in automatic and a button pressed to commence the stroke. It would seem that the only person who could have pressed the button was Mr Tava. But given the nature of the failures to which the defendant has pleaded guilty, the inference that may be drawn is that any error can be put down to a lack of training and supervision, a failure to provide or maintain a safe system of work and in particular, a failure to undertake a risk assessment, which would have revealed the possibility of operator error. Manifestation of the seriousness of the breach 40 The seriousness of the breach in this case was manifested by the death of Mr Tava. The comprehensive failures of the defendant to ensure Mr Tava's safety carried with them the ever-present prospect of serious consequences for that employee. The risk and its foreseeability 41 The risk in this case was the risk of the 74-kilogram plate being propelled from the press under pressure thereby causing injury or death. It is not necessary, however, that the precise causal circumstances of exposure to the risk and the consequent accident were foreseeable: Kembla Coal & Coke at 27; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364. The question here is whether it was reasonably foreseeable that in the absence of a safe system of work, adequate training, information, instruction and supervision and a risk assessment, Mr Tava's health and safety might be placed at risk in undertaking maintenance related work on the Number 2 press. The answer must inevitably be "yes". It was reasonably foreseeable that in the absence of any clear instruction or system of work that prevented Mr Tava from going any further than undoing the hold-down bolts in the absence of the tool setter, that Mr Tava might attempt to do so, either out of conscientiousness or pressure of work. Remedial steps 42 The steps that were available to avoid the breach were relatively straightforward. This is evident from the affidavit of Mr Robson. For example, the modification of the physical control measures on the press, the new instructions and training for operators, the undertaking of a risk assessment. All of these measures could have been - should have been - implemented prior to 11 February 2003, given the absolute duty on the employer to ensure health and safety. General deterrence 43 "[O]ne of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment": R v Radich [1954] NZLR 86 at 87, quoted with approval in Rushby [1977] 1 NSWLR 594 at 597 per Street CJ. In Capral Aluminium the Full Bench observed at [74]-[75] that: 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. ... Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act undeniable. 44 I propose to give considerable weight to general deterrence. Employees and their families should be entitled to expect that in New South Wales the employer has taken steps in the workplace to ensure the health and safety of the employee. The work being undertaken by Mr Tava was work in a dangerous environment but not an uncommon one in manufacturing industry. Specific deterrence In Capral Aluminium the Full Bench observed in relation to specific deterrence at [76]-[77]: 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. In R v Pickard [1998] VSCA 50, for example, Winneke P and Charles JA of the Victorian Court of Appeal stated (at 4): An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] IRComm 53 at [46]. 45 It is true that in this case the defendant operates a reasonably large enterprise (250 employees) in a dangerous industry. But in considering the risk of the defendant re-offending what must be taken into account is the defendant's hitherto clean record and the commendable steps it has taken to avoid a re-occurrence of the incident. The defendant has indicated by its actions that it takes its occupational health and safety responsibilities seriously, and whilst there is a proper basis to have regard to specific deterrence in any penalty that is imposed, it should not be a significant element. Subjective factors 46 The defendant has pleaded guilty and the prosecutor accepts the plea was an early plea thereby having significant utilitarian value in avoiding the need for any trial preparation and saving Court time. I propose to reduce the penalty by 25 per cent. In nominating the amount of reduction for the plea I consider that is permissible under Markarian but it also sends a clear message that where there is an early plea it can have a very important discounting effect on the penalty. 47 I have also had regard to the defendant's remorse, its cooperation with the WorkCover Authority in the investigation of the breach, the commendable assistance provided to Mr Tava's family and the steps taken by the defendant to cure the deficiencies that led to the breach. 48 There was no evidence that the applicant did not have the means to pay any fine imposed. 49 Having regard to all of the relevant circumstances, I have determined that an appropriate penalty in this case is $220,000. Orders 50 The Court makes the following orders: (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is convicted of the offence as charged. (3) The defendant is fined an amount of $220,000 with a moiety thereof to the prosecutor. (4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.