Industrial Court of New South Wales CITATION: Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 PROSECUTOR Inspector David Lavercombe PARTIES: DEFENDANT Alto Automobiles Pty Ltd FILE NUMBER(S): IRC 2391 of 2006 CORAM: Staff J CATCHWORDS: Occupational health and safety - Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 - Motor vehicle service and repair industry - Explosion caused by the ignition of petrol vapours - Decanting of contaminated fuel from motor vehicle - Apprentice motor mechanic injured - System of work in operation but not followed and defective - Foreseeability - Culpability - General and specific deterrence particularly young and inexperienced workers are employed - Good industrial citizenship - Importance of assistance provided by defendant to injured worker - Importance of defendant notifying WorkCover of new procedures and notifying the industry of its breach and the new procedures introduced - Late plea of guilty - Applicable principles re discount - Offence proven - Penalty imposed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Occupational Health & Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003) 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 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 R v Gorman (2002) 137 ACrimR 326 R v Previtera (1997) 94 A Crim R 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 HEARING DATES: 20 September 2007 DATE OF JUDGMENT: 5 October 2007 PROSECUTOR Mr J V Agius SC with Mr A C Casselden of counsel Solicitor: Mr M Selinger Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC with Mr I C Latham of counsel Solicitor: Mr R Fitzgerald Alto Automobiles Pty Ltd JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 5 October 2007 Matter No IRC 2391 of 2006 INSPECTOR DAVID LAVERCOMBE v ALTO AUTOMOBILES PTY LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 252 Introduction 1 On 5 July 2004 there was an explosion, caused by the ignition of petrol vapours, in the wash bay at the premises of Alto Automobiles Pty Ltd ("the defendant") located at 2/65 Whiting Street, Artarmon in the State of New South Wales. The explosion engulfed Mr Michael Humphreys, an apprentice motor mechanic, causing serious injuries including burns to 55 per cent of his body. 2 The defendant has pleaded guilty to a breach of s 8(1) of the Occupational Health & Safety Act 2000 ("the Act") which has resulted in this Court, for the reasons that now follow, imposing a penalty of $110,000 on the defendant. The Offence 3 The amended charge under s 8(1) of the Act was that the defendant: ... failed to ensure the health, safety and welfare at work of its employees, including Michael Humphries (sic) (the "injured worker") in that as the injured worker began the process of cleaning the floor of a wash bay ("the wash bay") at the premises which had become contaminated by a spillage of petrol which had been decanted from a motor vehicle into open top black plastic container ("container") and carried into the wash bay using an Earle Brand HD 623E hot water pressure cleaner ("the cleaner"), there was an explosion which engulfed the injured worker in flame causing him to sustain serious injuries including burns to 55 per cent of his body and the wash bay to be extensively damaged by reason that: 1. the Defendant failed to provide and maintain systems of work that were safe and without risks to health in that: 1.1 the Defendant failed to ensure that fuel, including petrol, was decanted into suitable containers capable of preventing petrol vapours escaping from the container and creating an explosive atmosphere around the container and on the floor of the wash bay, 1.2 the Defendant failed to ensure that ignition sources were isolated from the explosive atmosphere created by the petrol vapours, 1.3 the Defendant failed to ensure that there was adequate ventilation in the area where fuel including petrol was being transferred from an open top plastic container to an oil robot. 4 Further particulars of the offence were: 1. The defendant operated a vehicle service business from the premises. 2. At all material times the defendant was an employer in the State of New South Wales. 3. The defendant employed the injured worker as an apprentice motor mechanic. 4. The defendant owned the cleaner and the cleaner was provided for use by employees at the premises. 5. The injured worker had been directed to pour fuel from the container into a sealed 'oil robot' in the wash bay. 6. When the container was placed on the floor of the wash bay fuel vapours were released which made the wash bay a potentially explosive location. 7. At all material times the fuel in the container and the vapours emitted by the fuel was a flammable and explosive substance. 8. At all material times the cleaner was an ignition source although it is not clear whether the cleaner ignited the fuel vapour. 9. As a result of the failures of the defendant the injured person was exposed to risks of serious injuries and sustained serious injuries. The Prosecutor's Evidence 5 Mr J V Agius SC, who appeared for the prosecutor with Mr A C Casselden of counsel, tendered: (i) an agreed statement of facts; (ii) eight colour photographs taken by Inspector Robert Egan on 5 July 2004 showing the fire damaged car wash, the workshop area and the vessel which may have contained contaminated fuel; (iii) the defendant's prior record of convictions, which showed no convictions; (iv) a medical report from Dr Allan Meares, a plastic and reconstruction surgeon dated 26 June 2006. 6 Mr Agius also provided to the Court, a victim impact statement by Mr Humphreys dated 17 September 2007. 7 The agreed statement of facts (excluding formal parts) provided the following information: 3. At all material times the Defendant: 3.1 Was an employer in NSW as at 5 July 2004 (the day of the incident); 3.2 Employed Michael Humphries (sic) (the injured worker) as an apprentice motor mechanic; 3.3 Owned an Earle Brand HD 623E hot water pressure cleaner (cleaner) for use at the premises. 3.4 Operated a vehicle service business at 2/65 Whiting Street, Artarmon (the Premises). 4. At all material times the premises constituted the Defendant's place of work. Background 5. The defendant conducted its business of service of Land Rover and Jaguar motor vehicles from the premises. 6. The injured worker had been employed by the defendant as an apprentice mechanic for approximately six months prior to the incident and his normal duties included mechanical repairs and servicing to motor vehicles under supervision of a licensed technician. 7. On occasions the injured worker was required to assist a technician to decant fuel from vehicles. 8. The defendant had only commenced its operations from the premises a week prior to the incident. Incident 9. On the day of the incident the injured worker was required to assist a technician to decant contaminated fuel from a Land Rover Discovery (vehicle). The vehicle's fuel system had apparently been contaminated by adding the wrong fuel to its fuel tank. 10. The usual system for decanting fuel from vehicles at the premises was to elevate the vehicle on a hoist and drain the fuel directly into a sealed 'oil robot' which was then transferred and emptied into a waste fuel and oil recycling area. 11. On the day of the incident the workshop area of the premises there were no hoists that could raise this particular vehicle. Nathan Sora (Sora), the technician responsible for this vehicle, instructed the injured worker to assist in removing the fuel from the vehicle in the following manner: 11.1 The fuel was decanted from the vehicle in the workshop area into open top plastic containers; 11.2 The fuel was then carried in the open containers across to the wash bay (an area for washing vehicles); 11.3 The fuel was then poured from the open top plastic containers into a sealed "oil robot" container; 11.4 The "oil robot", once full, would then be wheeled to the waste disposal tanks in the workshop and the fuel pumped from the oil robot into the waste fuel tank. 12. Sora was of the view that pouring the fuel from the container into the oil robot in the wash bay would allow any spillage to flow into waste traps in the wash bay, and not create a slip hazard in the workshop. 13. As the vehicle was not raised on a hoist the oil robot could not be used directly at the vehicle and the fuel was drained into open top black plastic containers. This method was contrary to the system in place. 14. There was no alternate system in place for decanting fuel from vehicles which were not raised on hoists. 15. After the fuel had been transferred from the container to the oil robots the injured worker proceeded to clean the wash bay with the cleaner. 16. At about the same time as the injured worker commenced using the cleaner there was an explosion in the wash bay and the injured worker ran out of the wash bay with his clothes on fire and he collapsed on the ground at the front of the wash bay. 17. A co-worker, Matthew Braken, was approximately 10-15m away at the time of the incident and ran to the injured worker's aid with a fire blanket and subsequently took the injured worker across the road to a neighbouring premises to use their shower as the fire which ensued in the wash bay prevented access to the showers at the premises. 18. The injured worker was transferred to Royal North Shore Hospital for treatment of his burns. 19. As a result of the incident the injured worker sustained burns to 55% of his body 20. The injured worker was unable to perform his normal duties for a period of 33 weeks and returned to suitable duties on 17 February 2005. 21. The NSW Police and Fire Brigade attended the scene. 22. The wash bay was extensively damaged as a result of the explosion and ensuing fire. 23. There was no risk assessment conducted in relation to decanting fuel from vehicles without the use of a hoist although risk assessments were conducted in relation to other aspects of work. 24. The operating manual for the cleaner includes the following warning on page 6: 24.1 "The appropriate safety regulations must be observed when using the unit in dangerous areas (e.g. petrol stations). It is forbidden to operate this unit in potentially explosive locations." 25. When the open top plastic container was placed on the floor of the wash bay and the fuel was poured into the oil robots, fuel vapours were released which made the wash bay a potentially explosive location. 26. At all material times the fuel in the container and the vapours emitted by the fuel was a flammable and explosive substance. 27. At all material times the cleaner was a potential ignition source. Injuries 28. A letter to the defendant dated 11 August 2004 Dr Raper, Head of the Intensive Care Unit at the Royal North Shore Hospital (RNSH) noted that: "Michael, aged 22, sustained 55% burns as the result of a work place accident and required life sustaining therapies in Intensive Care as well as extensive surgery. Throughout his time in Intensive Care his parents provided invaluable support to Michael and worked with the treating team of doctors, nurses and therapists as Michael could not act on his own behalf" 29. On admission to RNSH the injured worker was put into a medically induced coma for a period of three weeks. 30. After he came out of the coma he was moved to the burns unit at RNSH where he stayed for approximately seven weeks. 31. Following discharge from hospital he attended RNSH on a daily basis for the next two months for physiotherapy and change of dressings. 32. He later moved to the Hunter Valley area to reside with his father and later his grandmother. 33. As at July 2005 the injured worker attended the burns unit on a monthly basis and wore a compression suit. It was anticipated that he would be able to dispense with the compression suit by October 2005. 34. He returned to work in February 2005 and by July 2005 had completed a graded return to work program and was performing pre injury hours and duties. 35. The injured worker also attended a support group for burn victims. Investigation 36. NSW Fire Brigade attended the premises following the incident and prepared a report dated 23 January 2006 which, inter alia, included the following information: 36.1 "Incident Description" 36.1.1 "Fire in wash bay area of New Roley Motors Artarmon, 1 person severely injured and had been removed from building prior to brigades arrival. Fire was contained to wash bay area and surround walls, interior and exterior. Also some damage to ceiling and through to next level. Fire extinguished by brigade personnel." 36.2 "Probably (sic) Ignition Factor" 36.2.1 "Fuel spilled, released accidentally" 37. At approximately 11.30am on 5 July 2004 Inspector Robert J Egan attended the premises and was met by Inspector Gibson of NSW Fire Brigade. In company with Inspector Gibson conducted an inspection of the premises and attended the wash bay area and made the following observations: 37.1 A severely fire damaged structure a semi isolated vehicle loading area internal structure within the workshop area, with structural lightweight metal materials hanging down from the wash bay roof/ceiling. 37.2 The wash bay area had a steel panel grated floor with a concrete formed catchment area, below the grating. The workshop layout along Whiting Street south west to north east. The wash bay ran from north west to south east. 37.3 The wash bay was located within a concrete floored brick constructed commercial building. 37.4 No other structures at the premises were affected by the incident. 37.5 Located within the wash bay area at the north east corner was a severely damaged high pressure powered water pump. 37.6 The wash bay was approximately 9.00m long, 4.0m wide and 3.5m high. A more accurate measurement could not be made as NSW Fire Brigade restricted access to the wash bay due to safety concerns arising from the fire damage. 37.7 There was a metal vessel approximately 3m north of the wash bay. This vessel measured approximately 1m high and 800mm in diameter and was supported on a steel angle frame which was fitted with wheels. 37.8 On top of the vessel was a round funnel measuring approximately 800mm in diameter and 400mm deep. The top of the funnel was open and there was an internal mesh filter to catch solids. 37.9 The funnel was attached to the vessel by a 75mm diameter steel pipe and had a plug handled valve. 37.10 Other than the fire damage to the wash bay the overall workshop condition was clean and satisfactory. 37.11 There were adequate "No Smoking" signs visible and well placed throughout the workshop area. 37.12 There were three discharged 9 kilogram fire extinguishers located approximately 6m south west of the wash bay area. 37.13 All walk and access ways were clear and free of obstructions and were wider than the minimum requirements. 37.14 Natural lighting was satisfactory. TestSafe Report 38. Mr David Pearson of TestSafe prepared a report into the incident dated May 2006. The report included the following discussion and conclusions: Conclusion on the most likely ignition source While ignition by means of an electrostatic discharge, impact spark or other source external to the wash bay cannot be excluded, the gurney ["the cleaner"] is considered to be the most likely ignition source on the basis that: 1 It was capable of igniting petrol vapour by several mechanisms (naked flame, hot surfaces, electrical spark), 2 It was situated in the rear left corner of the wash bay, in close physical proximity to the presumed main source of petrol vapour and likely origin of the explosion and fire. However, the gurney ['the cleaner'] was not available for examination and there is no direct evidence that it was in use at the time of ignition. For these reasons, the gurney ['the cleaner'] cannot be positively identified as the ignition source of the explosion and its involvement must remain speculative. 39. The explosion and subsequent fire at Alto Automobiles was caused by the ignition of petrol vapours that collected in the floor drain after two employees poured fuel from an open top plastic container into an oil robot in the wash bay . The wash bay was an enclosed bay normally reserved for washing cars and not for pouring fuel which was supposed to be done in the workshop by directly transferring fuel from the vehicle into "oil robots" that stored the flammable fuel in enclosed containers. This procedure was not used on the day of the incident, and the alternative method led to a dangerous work environment. 40 The use of the open containers made it possible for liquid and vapour petrol to spill onto the floor, creating a potential fire hazard both in the wash bay where the petrol was being poured, and in the workshop through which the open containers were carried. 41 If the work had been performed in an open and well ventilated area, well away from potential ignition sources, it is likely that the spilled petrol vapours would have not ignited. However, the enclosed nature of the wash bay, together with the gentle decline of the drain towards the rear left corner, created an environment where any spilled petrol was able to build up and form a flammable atmosphere. These circumstances were responsible for dangerous quantities of flammable fuel collecting in the wash bay. 42 Testsafe conducted an investigation into the matter and prepared a report which concluded that the most likely ignition source was the injured person operating the cleaner, which provided several ignition mechanisms and was positioned in the rear left corner of the wash bay where the accumulation of petrol vapour was greatest. The report concluded that operating the cleaner in hot water mode in this environment could have ignited petrol vapour and the relative confinement of the wash bay could have enhanced combustion and changed the outcome from a flash fire to an explosion. 43 The Testsafe report concluded that it is certain that this accident could have been avoided if the decanting operation had been delayed until a suitable fuel container and hoist were available. The risk can be further minimised by conducting such work in a well-ventilated area so that unforeseen fuel spills were not allowed to reach explosive concentrations. Following the incident 44 Following the incident the Defendant implemented new policies and procedures in relation to fuel handling and transfer procedures and conducted a risk assessment in relation to these procedures. 45 The Defendant cooperated with WorkCover during the investigation. 46 As a result of the said failures, the injured worker was exposed to risk of injury and sustained serious injuries. The Defendant's Evidence 8 Mr B D Hodgkinson SC, who appeared for the defendant with Mr I C Latham of counsel, read an affidavit of Mr Anthony George Altomonte, the Managing Director of the Alto Group of Companies, which includes the defendant, of which he is a director. Mr Altomonte was not required for cross-examination. 9 Mr Altomonte summarised the history of the Alto Group, which commenced operations in 1956, observing that the defendant was incorporated on 11 July 1996, with the intention of being the franchisee for the Land Rover dealership at Artarmon. In June 2004, the defendant completed the purchase of New Rowley Motors from Inchcape Motors Australia Ltd. An associated company, Altomonte Holdings Pty Ltd purchased the dealership site at 393 Pacific Highway, Artarmon, and the New Rowley Motors Jaguar business operating from the site was taken over and the name changed to Alto Jaguar Artarmon. At the same time, an assignment of a lease of premises at 2/65 Whiting Street, Artarmon (the premises where the incident occurred), was completed. At about the same, time the Service Department of Alto Land Rover moved into the Whiting Street premises. As at 30 June 2007, the defendant employed 57 employees with the Alto Group, employing a total of 444 employees across its various businesses. 10 Part of the settlement of the purchase of New Rowley Motors, was the entry into a sublease by the defendant of the premises at 2/65 Whiting Street, Artarmon. As part of the due diligence process, the defendant undertook enquiries, inspections and investigations in relation to the Whiting Street premises, which included that: (a) the premises had a current fire safety certificate; (b) the hoists in the workshop were under current test; (c) the fire extinguishers were current and charged; (d) a fire evacuation procedure was in place at the premises; (e) electrical leads had been tested and tagged; (f) accident registers were available and had been reviewed; (g) first aid equipment was available at the site. Copies of test certificates and relevant documentation in respect of these enquiries were annexed to the affidavit. 11 The premises had been completed in early 2003 and were described as a modern, well equipped automotive service facility and all of the health and safety features that would be expected to be in such a facility were present. 12 After the completion of the purchase, an inspection of the workshop was carried out by the Service Manager of Alto Land Rover. The Alto Automobiles Safety Committee which was in existence at Alto Land Rover Artarmon, carried out a site inspection and a site safety audit during June 2004. At the conclusion of these inspections the new Jaguar and Land Rover workshop opened at the Whiting Street premises on 28 June 2004. 13 Mr Altomonte stated that a fuel decanting procedure had been developed at the Alto Land Rover service department to deal with the problem that arose from time to time where the wrong type of fuel was added to a vehicle's petrol tank. Typically, this would see the addition of petrol into a diesel tank. This required the contaminated fuel to be drained from the tank and flushed from the system, the system repaired and the car refuelled with the correct fuel. 14 The safe procedure which had been devised for this process was that the affected vehicle would be raised on a four post hoist, and the fuel then drained directly from the fuel tank into a sealed oil robot. The oil robot is a metal tank of approximately 40 litres capacity with an opening at the top to which a funnel is affixed. Fuel is drained directly from the vehicle into the sealed oil robot. The oil robot, which is built onto a trolley with wheels, is then wheeled to a waste fuel tank in the service department, and the fuel pumped from the robot into the waste fuel tank. Fuel contractors are engaged to periodically empty the waste fuel tank into fuel tankers and to then take the fuel away for recycling or disposal. In the previous workshop, fuel decanting was done in a bay next to the wash bay, which was towards the front of the workshop and was well ventilated. Fuel decanting jobs were allocated by the workshop foreman to an experienced technician who would arrange for an apprentice to assist in the task under the technician's supervision. 15 On 5 July 2004, a white Land Rover Discovery was towed into the workshop with fuel contamination. As there was no four post hoist available, Mr Sora, an experienced technician, decided, contrary to the safe working procedure in place, to decant the fuel from the vehicle's petrol tank whilst it was on the ground. To do this, he placed a black recycling tub of approximately 40 litres capacity on the ground under the fuel tank and drained fuel into the tank until it was about half full. He then requested two apprentices, Michael Humphreys and Angus Booth, to carry the half full tubs to the wash bay, and to pour fuel from the tubs into the oil robots so that it could then be transferred from the oil robots into the waste fuel tank. Mr Sora believed that by carrying out the transfer of the fuel in the wash bay, any spillage would be properly dealt with and would not create any slip hazard on the workshop floor. Apparently, some fuel was spilled during this procedure which, it seems likely, subsequently caught fire leading to an explosion in the wash bay injuring Mr Humphreys. Immediately after the explosion, Mr G Forder, who was trained in first aid, came to the assistance of Mr Humphreys, minimising the effects of his injuries until an ambulance arrived. 16 Shortly thereafter, Mr Altomonte received a phone call advising him that there had been an explosion. He immediately contacted Mr Ralph Fitzgerald, the Group Corporate Counsel and they both went to the site. Upon arriving at the site, arrangements were made for employees to be transferred to the Land Rover sales building at 387 Pacific Highway, Artarmon. The WorkCover Authority of New South Wales was contacted and arrangements were made for a psychologist to attend the site to counsel employees. Arrangements were also made for the psychologist to be available for individual counselling sessions with any member of the workshop in the future weeks and months. A number of employees took up this opportunity. 17 Once these arrangements were in place, Mr Fitzgerald and Mr Altomonte went to the Royal North Shore Hospital to check on Mr Humphreys' condition. Mr Humphreys' parents, who live in the Hunter Valley, were contacted. A doctor reported the extent of Mr Humphreys' injuries to them and praised the efforts of the employees who rendered immediate and effective first aid, observing that these actions had probably saved Mr Humphreys' life. Mr Fitzgerald remained at the Hospital awaiting the arrival of Mr Humphreys' parents whilst Mr Altomonte returned to the site to oversee what was happening there. Assistance in the form of accommodation and anything else that Mr Humphreys' parents required was offered to them by Mr Fitzgerald. This offer was confirmed in writing by Mr Altomonte in the form of a personal note expressing his personal sorrow. A copy of the letter was annexed to the affidavit. As Mr Humphreys' parents had recently separated, arrangements were made for separate accommodation and the costs were met by the defendant for as long as it was necessary for them to remain in Sydney. 18 Mr Altomonte described the steps taken by the defendant to investigate the incident, which confirmed that there were an adequate number of fire extinguishers and fire blankets in the premises, together with two first aid kits and a fire alarm that connected directly to the NSW Fire Brigade. Employees confirmed that they were aware of the location of the fire fighting equipment and had been instructed how to use it. A high pressure cleaner in the wash bay was approximately six years old. Invoices annexed to the affidavit demonstrated that it had been regularly serviced and was in good operational condition. 19 Following the incident, Mr Altomonte met with Mr Fitzgerald, Mr Geoff Hardiman, who was the after sales manager for the Alto Land Rover Volvo and Jaguar businesses, and Mr Scott Parker, the workshop manager at the site where it was reported that the procedure used to decant fuel that was adopted prior to the incident, was not part of the safe procedure that had been developed for this process. It appeared that because a four post hoist was not available to elevate the vehicle to enable fuel to be drained directly into an oil robot, the open top black plastic containers were used. Mr Altomonte was advised that the WorkCover Authority had issued a prohibition notice against this practice and had confiscated the black plastic tub from the workshop. 20 Instructions were given by Mr Altomonte to review the current procedure for the decanting of fuels and to ensure that a safe procedure was prepared for use in all of the Alto Group workshops. Those present at the meeting were instructed to liaise with the WorkCover Authority in the preparation of a written procedure. It was subsequently reported that the WorkCover Authority did not have any procedure in place for fuel decanting and was not aware of any procedure. 21 A procedure was then developed that could not only be implemented throughout the Alto Group but was able to be used in other mechanical workshops in New South Wales to prevent this type of incident from occurring in the future. A new procedure involving the use of a ceramic pump and a new type of oil robot was designed and commissioned to be constructed, consisting of a 200 litres drum mounted on a trolley. Attached to the top of the drum was a ceramic fuel pump containing a long flexible hose, which was specially designed and made to feed into a car's fuel nozzle that was able to work through the anti-siphoning systems currently found in motor vehicles. The fuel pump was designed with a two-way switch so that it could pump fuel out of the car into the robot and then be reversed to pump fuel out of the robot, thus removing the need for any intermediate transfer of fuel other than through the oil robot. Anti-static mats were provided with the system to ensure there was no prospect of a static spark being created. Safety overalls, gloves and breathing apparatuses were also provided to technicians so that they were protected in case of any accidental spillage. 22 The system allows fuel to be decanted safely from a vehicle whilst on the ground, removing the need to have a hoist available. Fuel decanting bays were also identified in each workshop, in well ventilated areas, and clear from ignition sources to further reduce any hazard in the process. Mr Altomonte stated that the defendant spent in excess of $40,000 in acquiring new equipment for each of the Alto Group workshops. Each new decanting kit cost $3,467. The defendant made available to the WorkCover Authority copies of the final procedure, and a video of the training demonstration, to enable the WorkCover Authority to utilise the procedure more widely than in the Alto Group, as the defendant discovered during its investigation that there was no standard procedure available in New South Wales for the safe decanting of fuel. 23 In addition, Mr Fitzgerald wrote to the Executive Director of the Motor Trades Association of Australia, drawing its attention to the problem and providing an opportunity for a system to be devised nationally, preventing the wrong type of fuel being added to a tank in the first place, which would remove most of the cases where a tank of fuel would need to be drained from a car in a mechanical workshop. Copies of relevant correspondence were attached to the affidavit. The petroleum industry was not prepared to address the matter in the manner suggested due to the cost of retro-fitting nearly one million diesel vehicles in Australia. This confirmed the need for the new decanting system to be implemented across the industry. 24 A further measure taken in response to the incident was to redesign the wash bay area to remove any potential ignition source from inside the bay. This entailed changing the design so that the vacuum cleaner, a high pressure hose, part washing machine, separator pump and power outlets were all located outside the wash bay enclosure. The machinery that operates this equipment is installed outside the wash bay so that it is isolated from any potentially flammable substance that may get into the wash bay. Mr Altomonte stated that he believed that this was the first time such measures had been taken in designing a wash bay in New South Wales. 25 Mr Altomonte described the occupational health and safety policies and procedures throughout the Alto Group workplaces and stated it to be one of his highest priorities as Managing Director. It was a priority championed by his father, Mr George Altomonte, the Chairman and founder of the group. He spoke of his father's determination to ensure unsafe equipment was not used in the workplace and gave an example of his father rendering inoperable an unsafe grain auger that he discovered, contrary to his instructions, had remained on a property despite a new auger being purchased. 26 In 1999, the Alto Group established an Occupational Health and Safety Steering Committee consisting of the Corporate Counsel, the Payroll Manager, and selected safety representatives to oversee the implementation of occupational health and safety systems, policies and procedures throughout the Group. At the same time, safety committees were also established at each of the Alto Group worksites. These committees were set up in accordance with the consultation guidelines produced by the WorkCover Authority. 27 The Steering Committee produced a number of health and safety policies which were circulated to staff at the worksites and throughout the various safety committees which included the following: 1. The Alto Group Occupational Health and Safety Policy. 2. Return to Work Policy. 3. An Accident/Incident Investigation Policy. 4. Contractor Safety Management Policy. 5. Health Identification and Risk Management Policy. 6. A Group Induction Manual for New Employees. Copies of these policies were annexed to the affidavit. 28 Members of the Steering Committee and Site Safety Committee all attended a WorkCover Authority accredited four day course in occupational health and safety consultation. The Steering Committee also identified a need for trained first aid persons at each site. There is now a system in place that persons trained in first aid work at every site. Evacuation and fire training was also identified as an area requiring attention. Fire evacuation wardens were identified at each site. External firms such as Trimevac were engaged to carry out training and to develop evacuation plans at each of the Alto Group worksites. 29 The Steering Committee and Site Safety Committees are required to meet quarterly and review: 1. A quarterly summary of workers' compensation claims for that employer, provided from the workers' compensation insurer. 2. The motor vehicle accident register. 3. The workplace incident register kept at each workplace. 4. The results of each site safety audit conducted prior to each quarterly meeting. Any incident reports or hazard notification forms are also reviewed, with a view to making recommendations to management for any remedial action. The site manager is required to attend each of these meetings. 30 When the workers' compensation premium discount scheme was implemented in 2003, various Alto Group policy holders applied for accreditation and all were successful in passing the audits. Notwithstanding the premium discount scheme concluding, the directors of the Group instructed an independent occupational health and safety audit of group companies to be conducted annually to ensure that the Group maintain high standards in occupational health and safety. Independent audits are conducted in April each year by Accent Risk Management, a WorkCover Authority accredited auditor and training provider. Occupational health and safety is an item of business for directors' meetings, executive committee meetings and management meetings at each Alto workplace, whether these occur weekly, monthly, or at any other period. An advantage of this approach at the executive committee level is that concerns that are being dealt with well at one site can then be shared through other Group sites so that a common procedure dealing with common issues is then implemented throughout the Group. Mr Altomonte gave two examples of this, being the contractors' safety policies and safe operating procedures in mechanical workshops. 31 Mr Altomonte stated that the defendant had co-operated with the WorkCover Authority during its investigation, including providing information to assist in developing a new procedure for the safe decanting of fuel from motor vehicles, as referred to earlier. 32 He stated that when Mr Humphreys commenced employment as a first year apprentice motor mechanic at the age of 22, he was given a safety induction. Any function that first year apprentices perform is supervised and checked by a qualified technician working on the job. As apprentices progress from second to third year, the duties they perform unsupervised increase, but the jobs are always checked by a qualified technician. The first year apprentice is assigned to a qualified technician who supervises the apprentice. In addition, new apprentices complete the Automobile Mechanical and Electrical Occupational Health and Safety, and Coping with Injury in the Workplace Module as part of their TAFE studies. Mr Humphreys' TAFE report indicated that he attended TAFE on all the days that these modules were taught in 2004. 33 After the incident on 5 July 2004, the defendant maintained regular contact with Mr Humphreys, as did a number of its employees who gathered together and decided to buy him a tool kit, as one of the major expenses for a first year apprentice mechanic is the cost of tools. When the defendant heard about this, the moneys contributed by the mechanics were "topped up" so that a complete tool kit could be bought, including a mobile tool box which was presented to Mr Humphreys. 34 On another occasion in 2004, just after Mr Humphreys had been released from Hospital, arrangements were made to take Mr Humphreys and his father to the Bathurst Races for the weekend at the defendant's expense. By January 2005, Mr Humphreys obtained approval from his health professionals to return to work in a reduced capacity. The defendant arranged for work, including driving and clerical work to be available to assist Mr Humphreys in his return to work, which occurred on 21 January 2005, when he also resumed his TAFE studies. Mr Humphreys continued with these duties for several months with continuous monitoring of his progress and steadily increasing the amount of hours he was able to work. He was certified fit for his pre-injury duties from 24 June 2005, which he resumed on that date. Mr Humphreys remained employed by the defendant until his resignation on 6 July 2007, when he left to work in a general mechanical workshop, as he wished to gain wider experience than just servicing Land Rover vehicles. 35 Mr Altomonte set out the involvement that both he and his father have had in the motor industry and the general community for many years. This included Mr George Altomonte rising to the position of President of the Motor Trades Association of New South Wales, a position which he held from 1983 to 1986; being appointed by the New South Wales Government as a Member of the Motor Dealers Council in 1987; being elected the inaugural President of the Motor Trades Association of Australia ("MTAA") in 1988, which is based in Canberra; being appointed Chairman and Director of the MTAA House Pty Ltd, a trustee company looking after the assets of the MTAA and being appointed the independent chairperson of the MTAA Industry Superannuation Fund in 1990. 36 In March 1991, Mr George Altomonte was awarded life membership of the Motor Traders Association of New South Wales and in 2004, he was awarded a lifetime award by the Australian Automotive Dealers Association "for his 25 years conspicuous service to the interests of motor vehicle dealers and the retail motor trades through his participation in their representative bodies and for his significant role in the establishment of the MTAA, and for his services as the foundation president of the MTAA, foundation chairman of the MTAA Superannuation Fund and foundation chairman of the MTAA House, Canberra". In December 2005, Mr George Altomonte was awarded life membership of the Motor Trades Association of Australia. 37 Mr Anthony Altomonte's involvement in the industry includes being Chairman of the Jaguar Dealer Council for three years, Chairman of the Land Rover Dealers Association for three years and currently being the Chairman of the Jaguar Dealer Council. 38 The defendant has had a long involvement in community sponsorships including raising $100,000 for the new Children's Library at the Willoughby Civic Centre, providing $50,000 per year sponsorship for the Gordon Junior Rugby Union, sponsoring a number of junior soccer clubs and for several years being the major sponsor of the St Ignatius College Riverview and St Josephs College Hunters Hill Art and Craft Shows. 39 The defendant is also a sponsor of the Humpty Dumpty Foundation since its inception several years ago. This Foundation raises money to support the Royal North Shore Children's Hospital, and its major fundraising event each year is the Balmoral Burn, a foot race up the Balmoral Hill. The Alto Group enters a team in this competition each year with a donation of $5,000. The defendant, through their Toyota dealership, participates in the Toyota T3 Training Scheme which encourages young people to stay at school until Year 12, but allows them to commence their apprenticeships in Years 11 and 12 whilst still at school. At the end of Year 12, the defendant then employs apprentices who have been doing their early apprenticeships with them as third year apprentices. It is also a major sponsor of the Breast Cancer Foundation, through its Rugby Long Lunch fundraising event. Each year, for the past four years, the defendant has donated a car to be raffled at the Rugby Long Lunch function to raise money for the Foundation. The defendant also supports the Chatswood Community Police Constable with the provision of a fully maintained motor vehicle. The Community Constable is not provided with a vehicle by the Police Department, but the Alto Group has provided this vehicle to the Constable to enable them to attend schools and neighbourhood watch groups to fulfil their community policing role. The Principles 40 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide 'further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 as follows: [I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to "ensure ... health, safety and welfare at work" and the decided cases which make plain the nature of the obligation. [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and Page v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth 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 Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t 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). Consideration 41 Senior counsel for each party acknowledged that the primary consideration in proceedings relating to penalty under the Act, is the objective seriousness of the offence, which involves an objective assessment of the nature and quality of the offence. Reference was made to Markarian v R (2005) 215 ALR 213, where the High Court confirmed that the sentencing task begins with a consideration of the applicable legislation, that being, the Crimes (Sentencing Procedure) Act 1999 (NSW), in particular s 21A. It was acknowledged that subjective factors play a subsidiary role in the determination of penalty: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 42 I commence the consideration of penalty by having regard to the principles stated above and examining the nature and quality of the offence. Although the defendant had a system in place for the safe decanting of decontaminated fuel from motor vehicles, which involved the vehicle being elevated on a hoist and the fuel being drained directly into a sealed oil robot and then transferred into a waste fuel recycling area, the defendant on the day of the incident instructed Mr Humphreys to remove the fuel from the vehicle in the following manner: (i) the fuel was decanted from the vehicle whilst on the ground in the workshop area into open top plastic containers; (ii) the fuel was then carried in the open containers across to the wash bay; (iii) the fuel was then poured from the open top plastic containers into a sealed oil robot container; (iv) the oil robot, was then to be wheeled to the waste disposal tanks in the workshop and the fuel from the oil robot emptied into the tank. 43 It was this system of work that gave rise to the risk to health and safety. When the open top plastic containers were placed on the floor of the wash bay and the fuel poured directly into the oil robot, fuel vapours were released which made the wash bay a potentially explosive location as there was no way of preventing the escape of fuel vapours and removing the risk of potential ignition sources. Such an approach to the handling of fuel is clearly inherently dangerous as vapours emitted from the fuel are flammable and potentially explosive. Fuel also spilt onto the floor of the wash bay. Whilst this task was being undertaken, a hot water pressure cleaner was located in the wash bay, which was a potential source of ignition. The defendant was aware of the risk of ignition of fuel vapours and had put in place a system to avoid this very occurrence. This highlights the defendant's disregard for its occupational health and safety precautions in respect of what it regarded as an obvious risk. 44 This system was clearly defective in that first, it relied upon the availability of a hoist to safely decant contaminated fuel from a motor vehicle and secondly, it apparently allowed supervisors to exercise a discretion as to how fuel could be decanted from a motor vehicle if a hoist was not available. I respectfully agree with the observations of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 449 where his Honour said: Whilst I accept that the existence of settled safety procedures and instructions is a factor which is relevant to the assessment of the seriousness of the offence (see Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (unreported, Walton J, Vice-President, IRC142 of 1998, 16 August 1999) at 33), that system must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks: University of Sydney at 21. In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, Fisher CJ, CT88 of 1990, 20 November 1990), his Honour commented, in relation to an offence under s15 of the Act, that (at 7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." 45 Accepting that there may have been a degree of aberrant behaviour on Mr Sora's part, it is well settled that an employer's obligation is to ensure the health and safety of its employees and contractors. This obligation extends to the hasty, careless, inadvertent, inattentive or unreasonable employee and contractor. This is a facet of the proactive nature of the duty described in such forceful terms by Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 where his Honour said "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time at the workplace". See also Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority held: [45] The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 – 312 and WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248. [46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 (at par 15) as follows: "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. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (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.' " (See also WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). 46 And later at [48]: The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire (at par 16) as follows: "Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: 'In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p 44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8).'" 47 Furthermore, the presence of young and inexperienced persons in the workforce gives rise to increased responsibilities for an employer and reflects the seriousness of the offence: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78 at 100; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394, WorkCover Authority v McDonald's. 48 Whilst the consequences of an accident will not, of itself, dictate the seriousness of the offence, the occurrence of serious injury, as has occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31] - [33] and the cases referred to therein. See also Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337. 49 It is necessary to consider the degree of culpability for the breach of occupational health and safety that can properly be attributed to the acts or omissions of the defendant in order to determine the gravity of the offence to which the defendant has pleaded guilty. The failure here is essentially a failure to adhere to an established system of work, albeit, as observed earlier, a system which was defective. This diminishes for the purposes of sentencing, the culpability of the defendant. See Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15]. 50 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was readily foreseeable, as the defendant was aware, that an explosion could occur during the decanting of fuel from a vehicle if the hoist and oil robot were not utilised. 51 The seriousness of the risk, its foreseeability and the ease of removing that risk, renders this a serious offence. There was also the particular aggravating factor of the substantial injuries suffered by Mr Humphreys: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Mr Humphreys, who was aged 22 years at the time of the incident, sustained burns to 55 per cent of his body and was put into a medically induced coma for a period of three weeks. He returned to work in February 2005 and commenced performing the full range of his pre-injury duties approximately one year after the incident. 52 In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the offender from re-offending. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. I consider it is appropriate to draw attention to the need for employers operating in the motor vehicle service and repair industry to be aware of the risk of explosion from fuel or fuel vapours and to be constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety. This is particularly important where young workers are employed. In McDonald's, in dealing with this issue, Walton J observed at 452: In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 53 In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purposes of compelling the defendant's attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendant has an unblemished record in a dangerous industry and has taken appropriate measures to avoid a recurrence of the offence. The defendant, at significant expense, as described in the evidence of Mr Altomonte, has introduced a new procedure for decanting fuel safely from a vehicle whilst on the ground, which removes the need to have a hoist available. 54 The relevant subjective considerations include a plea of guilty. The plea was entered to an amended application for order which was filed in Court on 6 September 2007, two days before a two week trial was due to commence. 55 In its guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court of Criminal Appeal held at [160]: … (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. 56 Spigelman CJ, with whom other members of the court agreed, said at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 57 Wood CJ at CL said (at [163]): ... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice. 58 In R v Gorman (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, stated at [64], after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton: In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration. 59 In this matter the injured employee, a young man who suffered serious injuries, was spared the stress of giving evidence. In addition, there were significant savings due to the plea of guilty. 60 I propose to allow a discount of 25 per cent for the plea of guilty to the amended charges in accordance with the principles outlined in R v Thomson and R v Gorman. 61 I also take into account that the defendant co-operated with the WorkCover Authority in its investigation of the incident, the defendant's good corporate citizenship and the defendant's obvious strong commitment to occupational health and safety. 62 The Full Bench in Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area... 63 I take into account the assistance provided to the injured worker and the support given to his parents as set out in the evidence of Mr Altomonte. In addition and in my view consistent with the observations of the Full Bench in Corinthian Industries it is appropriate to take into account the extensive and impressive measures implemented by the defendant following the accident. These measures were not limited to the defendant's various premises. Copies of the new procedures introduced for the decanting of fuel were provided to the WorkCover Authority and to organisations representing the motor industry because there was no standard procedure for safe decanting of fuel available in New South Wales. As Mr Agius quite properly submitted: Your Honour, we would concede that it is not usual in these matters to have a respondent who goes to the trouble of notifying the industry of its own breach and the change in its structure, and it is fair to make that submission and it is appropriate in our submission for that to be taken into account. 64 This is a matter which goes to the defendant's contrition and also the aims that the WorkCover Authority seek to achieve in making industry safe and removing risks to workers' health. 65 Pursuant to s 30 of the Crimes (Sentencing Procedure) Act, the Court received a victim impact statement from Mr Humphreys who stated that he received burns to his body that put him in a medically induced coma for three weeks. After many months of painful rehabilitation and two years of wearing pressure suits, he stated he is now extremely susceptible to sunburn. For the rest of his life he will have scars that will be visibly noticed and recognised, no matter what clothes he wears. The scars need to be stretched and moisturised daily to keep full movement and mobility. This will continue for the rest of his life. He stated there is a possibility of future operations to loosen the scarring. 66 As I observed in Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 at [138]: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 67 I respectfully agree with the reasoning of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 84 - 85 where his Honour said: A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. Section 23C(3) of the Criminal Procedure Act 1986 (NSW) provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so ... In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case. 68 Similar observations were made by Members of this Court in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43] and Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported, Haylen J, 27 April 2004, matter No 5351 of 2003). 69 I have considered the statement from Mr Humphreys and formed the view that it would not alter the penalty, which I think is otherwise appropriate in this matter in all the circumstances of the case. 70 Further, it is appropriate that the Court extends its sympathy to Mr Humphreys for the pain and suffering that he has experienced and the impact that the accident will continue to have on his life. 71 The maximum penalty in this case, given that the defendant has no prior convictions is $550,000. 72 I consider an appropriate penalty, taking into account all of the circumstances set out earlier in these reasons, is $110,000. I should observe that the penalty would have been greater, but for the matters raised by the defendant, particularly in respect of the assistance provided to Mr Humphreys and the steps taken to advise the industry of the risks associated with decanting contaminated fuel from vehicles. 73 The prosecutor sought costs and a moiety of the fine which I propose to order. ORDERS 74 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 $110,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs 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.