Industrial Court of New South Wales CITATION: Morrison v Barry John Cahill [2007] NSWIRComm 114 PROSECUTOR: Rodney Morrison PARTIES: Department of Primary Industries (formerly Department of Mineral Resources) DEFENDANT: Barry John Cahill FILE NUMBER(S): 6866 of 2004 CORAM: Marks J CATCHWORDS: Occupational Health and Safety Act 2000 - s8(1) applies to defendant through s26(1) - death of employee giving rise to proceedings - guilty plea - penalty - defendant has strong commitment to safe mining operations - significant improvements were made to the mine upon acquisition by Perilya - defendant agreed to pay prosector's costs - no prior OH&S convictions - circumstances exist to allow discretion to be exercised under s10 of the Crimes (Sentencing Procedure) Act 1999 - HELD: guilty finding - charge dismissed - no order as to costs Victim impact statement - whether may be received at any time in the proceedings if primary victim has died - HELD: s28(3) of Crimes (Sentencing Procedure) Act displaces s28(1) and statement may be received at any time in the proceedings where primary victim has died LEGISLATION CITED: Occupational Health and Safety Act 2000 s8, 26 Crimes (Sentencing Procedure) Act 1999 s10, 28 CASES CITED: Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Newcastle Wallsend Coal Company Pty Ltd v Inspector McMartin [2006] NSWIRComm 339 HEARING DATES: 14, 16 - 18 August, 21 - 24 August, 28 - 30 August, 7 December 2006, 8 May 2007 DATE OF JUDGMENT: 8 June 2007 PROSECUTOR: Mr P Strickland SC Mr D O'Neil of counsel SOLICITORS: Crown Solicitor Ms J Burton LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson SC Mr M Shume of counsel SOLICITORS: Sparke Helmore Ms J Flitcroft JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 8 June 2007 Matter No IRC 6866 of 2004 Rodney Morrison v Barry John Cahill Prosecution pursuant to s 8(1) and 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 114 1 The prosecutor, Rodney Morrison, has charged the defendant Barry John Cahill with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"), which applies to the defendant through the operation of s 26(1) of the Act. 2 Ss 8(1) and 26(1) are in the following terms: 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. 26 Offences by corporations—liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 3 The proceedings commenced in 2004 and a defended hearing of those proceedings commenced in August 2006. The hearing of some days took place during which a number of witnesses gave evidence for the prosecution and an inspection of the site of the incident, which gave rise to the proceedings, was conducted. The prosecutor sought and was given leave to amend the charge brought against the defendant. This occurred on 7 December 2006. The defendant immediately pleaded guilty to the amended charge. 4 The proceedings are therefore constituted by a further amended application for order which is in the following terms: "I, RODNEY MORRISON, Director, Mine and Forest Safety Performance, of the Department of Primary Industries (formerly the Department of Mineral Resources), empowered under Section 106 of the Occupational Health and Safety Act 2000 and by the consent given to me by the Director General of the Department of Primary Industries to institute proceedings in the within matter allege that BARRY JOHN CAHILL, of 2/204 Melville Parade, Como, Western Australia contravened Section 8(1) of the Occupational Health and Safety Act 2000, on 28 November 2002 at Wentworth Road, Broken Hill in the State of New South Wales, in that the said BARRY JOHN CAHILL was a Director of PERILYA BROKEN HILL LIMITED (ACN 099 761 289) ("the corporation") and on that date the corporation, being an employer at the Perilya Broken Hill Mine situated at Wentworth Road, Broken Hill in the State of New South Wales, a place of work, failed to ensure the health, safety and welfare at work of all its employees, and in particular, Darren Andrew, contrary to Section 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The Defendant is taken to have contravened Section 8(1) of the Act by operation of Section 26(1) of the Act.The particulars of the charge are: PARTICULARS OF THE CONTRAVENTION OF THE DEFENDANT A. At all relevant times the Defendant was a Director of the corporation. B. At all relevant times the Defendant was Director of Operations for the corporation. PARTICULARS OF THE CONTRAVENTION OF THE CORPORATION A. The corporation failed to ensure that the premises controlled by the corporation were safe and without risk to health in that a nip point was created by the plat extension or other protrusion and the cage drop bar (referred to as a "safety bar") in the NBHC service shaft at the Perilya Broken Hill Mine ("the mine"). Persons riding in the cage were exposed to this nip point when the cage was moving and the cage door was open. B. The corporation failed to have in place any or any appropriate system for ensuring that only employees competent to so do operated the cage in the NBHC service shaft at the mine. C. The corporation failed to adequately instruct and inform employees (including Darren Andrew) so that they knew which employees were competent to operate the cage. As a result of the said failures Darren Andrew's safety was placed at risk and he was killed. AND I hereby apply for the issue of an order requiring the said BARRY CAHILL to appear before the Industrial Relations Commission of New South Wales in Court Session in answer to the said charge. My Affidavit dated 23 November 2004 verifying the allegations made in this application is attached." 5 Accordingly, this judgment is concerned only with the question of penalty. 6 An agreed facts document was filed in Court, the contents of which are set out hereunder (save for the attachments): Background 1. On 31 May 2002 Perilya Broken Hill Pty Limited (ACN 099 761 289) ("Perilya") took control of the Perilya Broken Hill Mine ("the mine") acquiring it from Pasminco. The mine was (and remains) situated at Wentworth Road, Broken Hill in the State of New South Wales and was (and remains) a place of work. 2. Perilya is a wholly owned subsidiary of Perilya Limited (ACN 009 193 695). At all times Perilya received the proceeds from the sale of the minerals produced at the mine through carrying out mining and treatment of ore to produce zinc and lead concentrates for shipment and sale. 3. Perilya was the owner and operating company of the mine at all relevant times. 4. Furthermore, Perilya owned the buildings and fixed plant at the mine at all relevant times and retained direct responsibility for the overall running and operation of the mine at all relevant times. 5. When Perilya took over control of the mine the shaft known as the NBHC Service Shaft was serviced by two cages (travelling vertically in the shaft and arranged so that one cage descended as the other was raised). At all material times the cage referred to as the south cage ("the cage") was used to transport persons. 6. The acquisition by Perilya included the site, plant and infrastructure. It did not include the transfer or continuing employment of any employees of Pasminco THE WORKINGS OF THE SHAFT 7. The cage had two decks, weighed 7750 kg and travelled within the 6100mm diameter of the circular shaft. 8. The cage was lowered and raised by an electrically powered double drum winder. 9. The cable attached to the cage wound around one of the winder's two drums. 10. A winder driver ("the winder driver") was situated in a winder driver cabin on the mine surface. 11. The winder driver had two depth indicators consisting of rotating drums mounted on a control panel. Each depth indicator identified to the winder driver where the corresponding cage was in the shaft. Marks on the depth indicators together with additional marks on the winder drums allowed the winder driver to bring the cage to a stop with the floor of the cage within centimetres of the plat surface. The depth indicators and the marks on the winder drums were visible to the winder driver." 12. The person operating the cage ("the operator") communicated with the driver in three ways. 13. The first was a telephone located near the plat on each level. 14. The second was by use of the wiggins situated at each plat level which rang a bell. The bell was rung in a designated code which allowed the winder drivers and the cage operators to communicate. 15. The third was via an "e-cam" system inside the cage ("the e-cam"), which was a voice communication system. OPERATION OF THE CAGE 16. Historically, during the cage's life, since approximately 1950, ordinarily permanent platmen were used to operate the cages. When the cage was first introduced the wiggins was the only form of communication between the platman and winder driver. A telephone located on the plats was introduced at a later stage in the operation of the shaft. In the late 1980's as a result of new technology the e-cam system was introduced into the cage. This system is located in the shaft and uses the winder rope as an aerial. 17. Pasminco did not use permanent platmen in other shafts, such as the Southern Cross shaft, which it operated on the Broken Hill orebody. In addition for some years prior to Perilya taking over the mine, they did not use permanent platmen on nightshift and overtime shifts. 18. The workforce employed by Perilya after 31 May 2002 included a number of former Pasminco employees; a number of employees who had previous experience in mining but had not previously worked in Broken Hill; it also employed a number of the new employees who had no previous mining experience. THE CAGE 19. The cage was used to carry equipment or men. Fully laden, it could carry up to 40 men in each deck, being 80 men in total. The cage doors opened onto the level or plat (Exhibit 14, photo no. 2 annexed). 20. As the shaft was circular and the cage rectangular there was an extension at each level or plat which came out to meet the cage ("plat extension"). 21. The cage was constructed from steel. The doors to the cage were solid steel. The sides of the cage were constructed from perforated steel. There was an open area directly above the door of approximately 60cm. 22. The cage door could be opened whilst the vehicle was in motion. The system in place required the door to be opened by the operator as it approached the level. 23. External to the cage door was a drop bar which stood at about lower chest/stomach height. The drop bar was put in place on the shaft side of the cage door. A nip point was created between the drop bar and the plat extension and other protrusions at each level as the drop bar passed the plat extension and the protrusions. The drop bar was as an added precaution to prevent a person inadvertently exiting the cage. 24. The cage could reach speeds of 25 feet per second when travelling between plats. The normal speed of the cage is approximately 15 kph. When the cage leaves the plat it gradually increases speed. As the cage approaches the destination plat it is gradually slowed down. At the point of reaching the plat it travels at a very slow speed known as creep speed. PROCEDURE TO OPERATE THE CAGE 25. The Safe Working Procedure in place as at 28 November 2002, SWP No U0112P(exhibit 2) required: "when the cage had reached its destination the person in control of the cage will open the cage door and ring one bell to stop the cage when the return bell from the winder driver is given the drop bar can be lifted and the plat door opened." It also stated "cage doors must be in the closed position when travelling". 26. In practice, as the operator approached the plat at which the cage was to stop, he opened the cage door as the cage slowed, sighted the plat and then rang the wiggins bell located on the plat adjacent to but outside the cage indicating to the driver to stop. The winder driver could see the cage's basic position on the drum in front of him. The winder driver would stop the cage on receiving the stop signal from the operator. The operator may then need to signal to the driver to raise or lower the cage if it was not aligned satisfactorily with the plat. 27. Once the operator had finished with the cage he would then either hand the cage over to a new operator or he would release the cage to the winder driver by ringing six bells. In the circumstances where the cage was released to the winder driver, the winder driver could then move the cage independently of the operator and would "park" the cage in the shaft between plats or if requested take it to another plat. The winder driver would take the cage to another plat upon request. 28. Any person who wished to operate the cage was required to first contact the winder driver by telephone. 29. When a new operator gained control of the cage the operator would then use the wiggins to communicate to the winder driver the level to which they wanted to travel. The bell code was displayed inside the cage and on the plat (Exhibit 13K annexed). 30. At the plat external to the cage was a sign headed "Pasminco Mining Broken Hill Use of Cages When a Full Time Platman is Not in Attendance" (Exhibit 13M annexed). The content of the sign is set out in the following annexure (MFI 3 annexed). PERILYA'S APPROACH TO THE OPERATION OF THE CAGE 31. Following inductions held at the mine in June and July 2002, a number of underground employees believed that the absence of full time platmen meant that all underground employees could operate the cage provided that they had signed off on the relevant Safe Work Procedure. 32. It was the intention of Perilya's senior management that only authorised persons could operate the cage. In the early months of the operation of the mine under Perilya, the intention was that those authorised persons were ex-Pasminco employees who were experienced in operating the cage. After the incidents on 26 July and 16 August 2002, Perilya sought to introduce a system whereby only authorised persons could operate the cage. However, that system had the following inadequacies: (a) There was no published list of persons who were authorised to operate the cage; (b) There was no proper documentation indicating which persons had been trained and assessed as being authorised to operate the cage; (c) The system did not prevent unauthorised persons from operating the cage. 33. On 26 July 2002 a contractor from Woodman Tyre rang the bell at the top brace, situated on the surface, in an attempt to gain control of the cage without first telephoning the winder driver. This was contrary to the existing safe work procedure and potentially dangerous. 34. Investigation into the incident revealed that the Woodman Tyre employee had inadequate capability, lack of knowledge and did not possess the skill to operate the cage. 35. On or about 14 August 2002 Edward Butcher Vice President Metalliferous South Western District of the CFMEU contacted Inspector Welsh of the Department of Mineral Resources, [as it then was, now the Department of Primary Industry] ("the Department") regarding issues which had been raised with him in relation to the use of the cage. 36. On 16 August 2002 Greg Welsh, the Department's Regional Inspector of Mines, attended a meeting with Perilya management and shaft supervising personnel to discuss, a number of issues, including the complaint by Mr Butcher. 37. Present at that meeting were Visko Sulicich (Production Manager), Stephen Jeffers (production Superintendent), Noel Hannigan (Underground Infrastructure Foreman), Trevor Read (Electrical Superintendent), Tony Edwards (Safety/Training Officer) all employees of Perilya, and Greg Welsh. 38. At the meeting a general discussion took place concerning the operation of the cage. Mr Welsh was advised that Perilya were using a safe work procedure established by the former mine owners. This safe work procedure was entitled "Use of cages when full time platman is not in attendance". 39. Mr Sulicich indicated that the procedure was being reviewed and that all personnel operating the cage would be retrained in the procedure when the review was complete. 40. Mr Welsh indicated that the review being undertaken by Perilya should include a full consideration of all hazards. INCIDENT ON 16 AUGUST 2002 41. On 16 August 2002, at about 2.20pm, Scott Ferguson, who was employed by Perilya as a Supervisor, failed to use the wiggins bell to stop the cage on level 18. 42. An investigation into the incident by the company identified Mr Ferguson failed to notify the winder driver that the cage was level with the plat by ringing one bell before leaving the cage. 43. Emerging from i. steps Perilya had already started in relation to reviewing their safe work procedure ii. discussions with Regional Inspector Greg Welsh, and iii. Perilya's reaction to the Scott Ferguson incident, Perilya set up a team to review the relevant safe work procedure and to retrain all the underground department in cage use. 44. Up until 16 August 2002, Perilya had used a safe work procedure established by Pasminco. The safe work procedure was known as Pasminco Broken Hill Mine – Use of Cages when Full-Time Platman is not in attendance SWP No U0012P. (Exhibit 5 annexed). 45. The further review of the safe work procedure was completed by 20 August. On that date the new SWP titled "Perilya Broken Hill Mine Use of Cages when Full-Time Platman is not in attendance SWP No U0112P was approved (Exhibit 2 annexed). 46. On or about 20 August 2002, Eddie Butcher raised his concerns directly with the Defendant about the fact that he understood that anyone could operate the cage [T 406-407]. 47. Between 20 August and 4 September 2002, 45 employees were signed off by Tony Edwards indicating that they had read and understood the safe work procedure relevant to "use of cages when a fulltime platman is not in attendance". An example of the sign-off document is annexed (Exhibit 3 annexed). 48. A number of employees understood that anyone who had signed off on that SWP was authorised to operate the cage . In fact, the mere fact of signing off on the SWP did not make a person competent or authorised to operate the cage. THE DEATH OF DARREN ANDREW 49. Mr Andrew's experience and background involved operating loaders, trucks and rock breaking work. 50. At the commencement of his employment Mr Andrew underwent a site induction. This included some information on how the cage was operated, including reference to the bell system. He was informed that he could not use the cage unless he was authorised. 51. Attending the induction of itself did not make an employee competent to operate the cage. 52. At about 12.40am on 28 November 2002 Mr Andrew travelled, by cage to the level 21 lunch room ("crib room"). 53. At approximately 1.50am Mr Andrew left the crib room with a view to returning to his rock breaking task on level 17. 54. When Mr Andrew entered the cage after leaving the crib room he was accompanied by Michael Wheatley, Chris Laurie, Craig Barron and Robert Pollard. Wheatley, Laurie, Barron and Pollard were all returning to work on level 23. Mr Wheatley operated the cage to level 23. 55. The cage travelled to that level and then Mr Wheatley handed the operation of the cage over to Mr Andrew. 56. Mr Andrew had not operated the cage either when travelling from level 17 to the crib room prior to the meal break ("crib") or when travelling from the crib room down to level 23 after crib. 57. When Mr Wheatley handed the operation of the cage over to Mr Andrew he spoke to the winder driver, David Goodman, via the e-cam system. He told David Goodman that he was handing the cage over to "Darren" or "young Darren". 58. Mr Andrew then operated the cage. 59. Mr Wheatley had met Mr Andrew the night before (26 November 2002). He had no knowledge as to whether Mr Andrew was or was not competent to operate the cage. 60. Mr Andrew indicated he was taking the cage to level 21 by signalling via the wiggins bell on level 23. 61. The cage travelled past level 22 and then slowed down as it approached level 21. 62. At level 21 Paul Attard and Tony Gepp discovered the body of Mr Andrew. The head of Mr Andrew had been crushed between the drop bar at the front of the cage and some part or parts of the shaft between levels 23 and 21. In addition, a part of Mr Andrew body was dragged through the narrow opening between the cage and the plat extension at level 21. 63. As the cage travelled from level 23 the door either came open or was opened and part or parts of the body of Mr Andrew extended past (the shaft side line of) the drop bar resulting in the rear of his head coming into contact with part of the shaft and the front of his head coming into contact with the drop bar. 64. At the time of his death, Mr Andrew was wearing a safety helmet. The rear of the safety helmet had a significant dent. Across Mr Andrew's forehead there was an extremely deep laceration. THE CONTRAVENTION BY THE CORPORATION PARTICULAR A 65. The corporation failed to ensure that the premises controlled by the corporation were safe and without risk to health in that a nip point was created by the plat extension or other protrusion, and the cage drop bar. 66. The drop bar was commonly referred to by mine workers as a "safety bar". 67. As the cage passed the plat extension the drop bar was 50mm from the plat extension. 68. As the cage travelled in the shaft the drop bar also passed by and very close to, other items protruding into the shaft. 69. If the cage door was open, as the cage was moving, and parts of anyone's person extended past the drop bar then those parts which were past the drop bar could be crushed between the drop bar and protrusions, (including the plat extension) which came close to the drop bar. PARTICULAR B 70. The corporation failed to have an appropriate system to ensure that only employees competent to do so operated the cage in the NBHC service shaft at the time. 71. Perilya sought to introduce a system whereby only authorised persons could operate the cage. However, that system had the following inadequacies: (a) There was no published list of persons who were authorised to operate the cage; (b) There was no proper documentation indicating which persons had been trained and assessed as being authorised to operate the cage; (c) The system did not prevent unauthorised persons from operating the cage PARTICULAR C 72. The corporation failed to adequately instruct and inform employees (including Darren Andrew) so that they knew which employees were competent to operate the cage. 73. The supervisors of the Production and Development departments knew of a number of people in their department who were authorised to operate the cage but did not know all of the people in their department who were authorised to operate the cage. However, the supervisors had access to training officers and records which could inform them of who was authorised. 74. The winder drivers knew a number of people who were authorised to operate the cage but did not know all of the people who were authorised to operate the cage. When the winder drivers were contacted by employees via the telephone or the e-cam system they had no way of checking whether the employees were competent (trained and authorised) as they did not have access to a list of who was competent. THE DEFENDANT 75. At all relevant times the Defendant was a Director of Perilya. 76. At all relevant times the Defendant was the Director of Operations for Perilya Limited. STEPS TAKEN SUBSEQUENT TO THE INCIDENT 77. By about 4 December 2002 Perilya had taken the following steps: i. Restricted the operation of the cage to experienced shaft crew ii. Instructed all operators of the cage who had been trained by Perilya not to operate the cage pending further training iii. Published a list of operators who were authorised to operate the cage and posted same in the winder driver's control cabin 78. Subsequently, further changes were made to the operation of the cage. Perilya reassessed the safe work procedures from time to time. 79. On 15 September 2004 the company approved "Perilya Broken Hill Mine Operation of the Man Riding Shaft Conveyance SWP U0142P" (Annexed). 80. On 29 May 2006 Perilya approved the document "Operation of the Man Riding Shaft Conveyance SWP U614" (Annexed). 81. As at August 2006 the following applies: i. authorised platmen operate the cages; ii. There are lists of the relevant authorised platmen; iii. The lists are available to the winder drivers; iv. There has been added to the cage a Perspex section so that the plat can be viewed without opening the door; v. A locking system has been placed on the cage door. The cage door can still be opened while the cage is in motion. However, the winder driver is alerted to the fact that the door is open by way of a light in the winder driver's cabin and is able to bring the cage to a controlled stop. vi. The system has been modified so that the door is not opened until the cage has stopped. vii. The primary source of communication with the winder driver is through the e-cam and the "bells" within the cage. viii. The back up system is to use the wiggins bells. 7 In addition to the above material, the Court received affidavit material from the defendant and from Messrs Bradley Rowbotham, Bob Morley, Timothy Clifton, Simon Billing and Peter Eggleston. This is, of course, in addition to the evidentiary material already before the Court during the course of the substantive hearing, albeit the proceedings at that stage were based on a charge that differs from that by which the proceedings are now constituted. 8 It will be seen from the Agreed Facts document that the incident that gave rise to the proceedings was the untimely and tragic death of Mr Andrew on 28 November 2002. 9 The Court acknowledges having received Victim Impact Statements from Brian Andrew and Joyce Nairn, the parents of Mr Andrew. 10 For completeness, I should add that I initially raised with counsel for the prosecutor and the defendant the timing of the receipt of the Victim Impact Statements given that I was asked by the defendant not to record a conviction but to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. This arose because of the provisions of subsection (1) of s 28 of the Crimes (Sentencing Procedure) Act. S 28 is in the following terms: 28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) Despite subsections (1), (2) and (3), a court: (a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. (5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. 11 In the unfortunate circumstances of these proceedings, the primary victim of the Victim Impact Statement has died as a direct result of the offence with which the corporation has been charged. I would apply s 28 so that in the circumstances of these proceedings subsection (3) mandates the receipt of Victim Impact Statement and its acknowledgment and there is no temporal condition imposed as to the time when the Victim Impact Statement may be received. This is to be contrasted with the provisions of subsection (1), which, firstly, creates a discretion as to whether a Victim Impact Statement may be received and, secondly, determines the stage in the proceedings when such a statement may be received. Subsection (3) would therefore appear to have the result that the Victim Impact Statement may be received prior to conviction if that pre-condition has been met. Certainly, in the context of these proceedings, the relevant statements were tendered to the Court by the prosecutor prior to conviction, with no objection being raised by the defendant. 12 Evidence given in the proceedings indicated that Mr Andrew undertook an induction process in October 2002. He commenced work on 21 October 2002. 13 Whilst it is clear that Mr Andrew was killed when his head came into contact with the protruding nip point as the cage was ascending, there is no explanation concerning the reason why, or the circumstances in which, the cage door had opened and Mr Andrew had placed his head outside the cage in a position where he was liable to be struck by the nip point. The evidence of Messrs Rowbotham and Morley is to the effect that Mr Andrew had been shown how to operate the cage, although it was clear that he had not been authorised in any formal sense to do so. Having not been so formally authorised, Mr Andrew should not have been left alone in the cage and required to operate it on the ascent up to the level to which he was travelling. This is, in my opinion, the gravamen of the breach of the Act. 14 As the agreed facts document demonstrates, there had been two prior incidents concerning the operation of the cage, both of which had resulted in remedial action by Perilya. 15 The circumstances of the defendant and his involvement in and about the operations of the mine, including specifically the safe operation of the mine, assumed significance for the purpose of the penalty hearing, for reasons that I shall shortly develop. The evidence was that the defendant was the Director of Operations of Perilya from June 2002 to March 2004. He had commenced employment with that company on 1 February 2000 and had previously worked on a contract basis. Mr Cahill has a long history of employment in the mining industry, particularly at senior managerial level. The totality of the evidence in the proceedings was to the effect that Mr Cahill had a strong commitment to safe mining operations and the safety of all persons performing work at the operations for which he had managerial responsibility. He was intricately involved in the acquisition by Perilya of the mine at Broken Hill at which the incident occurred. This involved a lengthy process including a due diligence investigation which led to the acquisition by Perilya of the mine from Pasminco Broken Hill Mine Pty Ltd ("Pasminco"). The due diligence commenced in 2000 and took two years to complete. The mine was acquired by Perilya on 31 May 2002. 16 Upon acquisition, the defendant determined to make a number of substantial changes to the operation of the mine. Many of these were directed to safety issues, particularly as the injury rate at the mine under the Pasminco operation was said to be four times higher than the national average in the mining industry. 17 The defendant was appointed to the statutory position of mine manager on about 31 May 2002. It was determined that much of the mining equipment and mine infrastructure was in poor condition and needed to be replaced or upgraded. 18 Following an extensive audit of the state of the mine, the defendant determined that it was necessary to shut down its operations completely for a period of four weeks to allow it to be upgraded. Significant improvements, including those directed to safety of operations, were made during this period. Some of the matters that were the subject of rectification or improvement included the upgrading of underground roads, removal of a number of hazards, the removal of accumulated lead dust, the repainting and refitting of the change house and crib rooms, the fitting of seat belts to mobile equipment, the provision of appropriate uniforms, the introduction of laundry facilities for uniforms, the prohibition of smoking, the expansion of designated hard hat areas, extensive mapping of the mining operation, and, significantly for safety, the introduction of formal workplace inspections, job safety analysis and the establishment of a safety committee. External consultants were retained to develop a training program. Furthermore, all persons who were employed by Perilya were required to undergo a pre-employment medical examination and a five-day induction program. The evidence is to the effect that employee safety occupied a significant part of the induction program. A complementary safety management program was also developed by external consultants, which is comprehensive in nature and which extended to all facets of the operation of the mine. This included the holding of regular meetings extending over the whole of the workforce to discuss not only the work that was to be performed during each work period but also the safety aspects associated with the carrying out of that work. 19 The defendant ceased being the resident manager of the mine in late August 2002. However, he retained overall authority as Director of Operations. At the date of the incident, the defendant was residing in Perth. 20 In considering the question of penalty, Mr Hodgkinson SC, who with Mr M Shume of counsel appeared for the defendant, submitted that the Court should have regard to the following factual matters: 1) The defendant was not directly involved in the operation of the mine on the date of the incident. 2) The defendant had, throughout his involvement in the mine, engaged proactively in ensuring the safe operation of the mine and had demonstrated a commitment to safety matters. 3) The defendant had had to labour under some difficulty having inherited a poor mining structure and practices and a less than satisfactory safety record. This involved the necessity to change the operational culture of the mine so as to reduce the pre-existing high injury rate. All of this had to be attended to quickly because many of the problems that were encountered had not been disclosed in the due diligence process. 4) The defendant had closed the mine prior to Perilya commencing operations to allow the safety and other matters to be addressed. 5) The defendant ensured that the approach to safety that he implemented applied throughout the whole of the workforce including those at managerial level. 6) The defendant had put in place a process to ensure that only appropriately qualified persons were employed at the mine and that they had been instructed and trained appropriately by reason of a comprehensive induction process with an emphasis on safety. 7) The defendant had ensured that the procedures and protocols used by Perilya particularly with respect to the operation of the cage and the use of platmen had been appropriately reviewed, particularly after the two prior incidents. 8) The regular safety meetings and the involvement of various levels of management and the workforce as a whole were an example of the commitment by the defendant to safety and the manner in which he ensured that commitment pervaded the totality of the operations of the mine. 21 The Court was informed by the defendant's counsel that the defendant had agreed to pay the prosecutor's costs in the sum of $45,000. 22 It was submitted on behalf of the defendant that he should have the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. S 10 is in the following terms: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 23 Specifically, it was submitted that the charge be dismissed under s 10(1)(a). 24 The application of this provision to prosecutions brought under the Act, and in particular to prosecutions brought against persons caught by s 26 of the Act, has been the subject of consideration by a Full Bench of this Court in Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117. Those proceedings arose out of the collapse of the roof of an underground mine consequent upon the unauthorised removal of safety structures. 25 After citing authority requiring "cogent reasons" to be given in the exercise of any discretion to apply the section, the Full Bench approached the matter by reference to "the culpability" of the personal defendant. At [133] and [134] the Court (Walton J, Vice-President, Boland and Staff JJ) said: 133 In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal and Coke Pty Ltd and Anor (2001) 105 IR 348, in which Walton J, Vice President determined to apply s 10, his Honour referred to the judgment of Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38] and [39] where the President considered the construction of s 50 of the Occupational Health and Safety Act : 178 In assessing the culpability of the second defendant, it is also necessary to consider the application of s50 of the Act. Wright J, President, discussed the construction and implications of s50 of the Act in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [38]. His Honour's construction of the section, with which I agree, was as follows at [38]: Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant. 179 His Honour also made some observations relevant to the assessment of culpability in the light of a prosecution arising in consequence of the operation of s50 of the Act as follows (at [39]): In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant. ... 134 Walton J then proceeded in Berrima Coal and Coke to consider the culpability of the personal respondent who was in a very similar position to Mr Foster, being a mine manager with duties and responsibilities under the Coal Mines Regulation Act 1982. Taking the same approach in this case, we also consider the culpability of the personal respondent was less than the corporate respondent. Mr Foster could not, by any means, be considered the alter ego of the corporate respondent. 26 In determining to apply s 10 in the circumstances of those proceedings, the Full Bench balanced as against the undoubted responsibilities that reposed upon the personal defendant as a mine manager a number of "countervailing facts". These included the short time in which that defendant had been in his managerial role, that the defendant had carried out underground inspections and noticed nothing untoward concerning the state of the roof, that he had "conscientiously and diligently" attended to his safety responsibilities, that there was nothing that should have alerted that defendant to a risk arising from the instability of the roof and that he had not been involved "in the critical planning stages where decisions were made about assessment procedure in relation to mining conditions…." (At [139]). 27 The Full Bench considered that the personal defendant's culpability was less than that of the corporate defendant in terms of the objective seriousness of the offence and determined to apply s 10 taking into account also the defendant's prior good record and his good character. 28 A Full Bench of this Court also determined to apply the provisions of s 10 of that Act in Newcastle Wallsend Coal Company Pty Ltd v Inspector McMartin [2006] NSWIRComm 339. 29 In a joint judgment, Walton J, Vice-president and Boland J said: 618 Although we are mindful of the Full Bench's decisions to the effect that the discretion available under s 10 would be rarely available in significant offences against the legislation (see WorkCover Authority (NSW) v Profab (2000) 49 NSWLR 700; 100 IR 64 and WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101), it is important to bear in mind that each matter requiring consideration under s 10 needs to be assessed in the light of its own particular circumstances: WorkCover (NSW) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 and Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [174]. 619 In this case, Mr Buchanan submitted that Mr Romcke should be treated as Mr Foster was in Morrison v Powercoal (No 3) . In relation to Mr Foster the Full Bench identified a number of considerations weighing in favour of applying s 10 of the Crimes (Sentencing Procedure) Act . These were: (1) The opportunity for Mr Foster to became completely familiar with the mine and its operations was limited. (2) In relation to the assessment charge, whilst Mr Foster carried out underground inspections he noticed nothing untoward in respect of the state of the roof. (3) Mr Foster, conscientiously and diligently attended to all of his safety responsibilities in the three and a half months prior to the incident including consultation with Professor Galvin who reviewed the pillar stripping layout for 304 Panel on 3 April 1998 at Mr Foster's request and consultation with Mr Beatty the District Inspector. (4) Mr Foster was not involved in the critical planning stages where decisions were made about assessment procedure in relation to mining conditions and the process of recording and notification of conditions in the mine. (5) In respect of the reporting and notification charge, Mr Foster deposed that there was nothing in the reporting system in place before the accident that alerted him to a risk arising from the instability of the roof. 620 The Full Bench found at [140]: 140 We consider that, in the circumstances, it would be quite artificial and wrong to arrive at a finding that Mr Foster should carry the same weight of culpability as the corporate respondent in terms of the objective seriousness of the offences. Given Mr Foster's short duration as manager, and the size and nature of the task of coming to terms with the operations of the mine and the planning and processes that had been put in place prior to him taking up his role as manager, he necessarily had to rely to a significant extent on the judgment and advice of others. Moreover, it is readily apparent that Mr Foster had a strong commitment to occupational health and safety and afforded it a high priority in carrying out his responsibilities in the short period between March 1998 and 17 July when the incident occurred. 621 We would assess the seriousness of the offences in these appeal proceedings as considerably greater than those in Morrison v Powercoal . However, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant: WorkCover (NSW) v Walco Hoist (No 2) (2000) 99 IR 163. In our view, in this case, Mr Romcke's personal culpability is markedly less than that of NWCC. Although it is true that Mr Romcke was present and involved in the planning of the development of the mine, was aware of the risk of inrush of water from the old workings, and failed to be in possession of all available information regarding disused excavations or workings in the vicinity of the mine, the extent to which he was involved in the actual commission of the offence was significantly limited. Although he has been found guilty by virtue of the deeming provisions of s 50(1), his criminal culpability must be regarded as diminished by virtue of the fact he left the role of mine manager with NWCC on 28 October 1994. 30 It will be seen that this involves confirmation of the approach referred to in Morrison v Powercoal (No 3) of assessing and comparing the culpability of a personal defendant with that of a corporate defendant. 31 The prosecutor submitted that the application of s 10 of that Act was available to the Court within the Court's discretion. In so submitting, however, Mr P Strickland SC, who appeared with Mr D O'Neil for the prosecutor, said that the Court should take into account that the defendant was a director of Perilya, was aware of difficulties concerning the operation of the cage because of the prior two incidents and had received personal representation about its operation and about the use of platmen from Mr Butcher, as is referred to in the agreed facts document. 32 However, these matters needed to be counterbalanced against a number of indicia that might operate in favour of the application of the provision. These included firstly that at the time of the incident itself the defendant was no longer the resident manager and was in fact on leave. Furthermore, the defendant had had a limited opportunity to become completely familiar with all aspects of the mine, he had acted conscientiously and diligently prior to the incident, he had taken steps to put in place a system which identified "near miss" incidents within 24 hours of their happening, he had approved a system of re-authorising all users of the cage after the second incident even though those steps had not been properly implemented and there had been nothing that alerted the defendant to the fact that the system had not been implemented. It was therefore relevant that the defendant was not personally responsible as statutory mine manager as at the date of the incident. In addition to these matters, the prosecution drew the Court's attention to the fact that this defendant has no prior convictions for any offence under the Occupational Health and Safety legislation and he personally has an exemplary record with respect to his commitment to safety in his prior positions. 33 Mr Strickland emphasised that the prosecutor, on behalf of the Department of Primary Industries, should not be seen to have created any precedent with respect to the attitude of that Department to any other prosecution for breach of the Act brought against any personal defendant who was absent from a place of work at the time that any incident occurred. As it is clear from the authorities that each case must be decided on its own particular facts, the submissions made by the prosecutor in these proceedings must be confined to the particular circumstances of these proceedings. Furthermore, there may be a differential approach to the assessment of culpability depending upon whether a personal defendant is a director or concerned in the management of the corporation. 34 I proceed on the basis, as is well known, that in applying s 10 of the Crimes (Sentencing Procedure) Act and in particular in considering the matters which are mandated by subs (3), it is not essential that each of those matters should necessarily apply before any discretion may be exercised. In the context of these proceedings the offence committed by the corporation and therefore the offence with which this defendant is charged is, viewed objectively, of a most serious kind and could never be described as "trivial". However, there can be no doubt that this defendant is of good character and has an unblemished record concerning his commitment to occupational health and safety matters. 35 This leaves for consideration paragraphs (c) and (d) of subsection (3). In considering "extenuating circumstances" I must have regard to the fact that the offence is an absolute offence and that, save for the observations of the Full Bench in authorities such as Morrison v Powercoal (No 3), I would have been reluctant to consider the personal culpability of the defendant and compare it with that of the corporate defendant. That is, on one view of it, the personal defendant being deemed to have committed the same offence as the corporate defendant, it is only those extenuating circumstances that would apply to the offence committed by the corporate defendant that would apply to the personal defendant. This is, as I have said, in the context of an absolute offence. However, guided by Full Bench authority I take into account the several matters that were submitted on behalf of the prosecutor as enabling the exercise of discretion. Under paragraph (d), I also take into account the impact that this incident has had on this defendant and his family, as attested to in the evidence, and the fact that he has agreed to pay the prosecution costs of $45,000. 36 The defendant submitted that I should take into account as a relevant matter under s 10(3)(d) of the Crimes (Sentencing Procedure) Act the fact that the defendant entered a plea of guilty immediately upon the amendment of the charge. The prosecutor submitted that this was a matter relevant to be taken into account under s 10(3)(d) but submitted that it was not significant because of the timing of the plea of guilty. However, the prosecutor's submission needs to be balanced against the fact that the prosecutor was granted leave to amend the charge some time after the commencement of the substantive hearing of the proceedings and immediately thereafter the defendant entered the plea of guilty. I shall take this matter into account, albeit to a limited degree, in determining whether to exercise discretion under s 10. 37 I accept the submissions made by counsel for the defendant. I acknowledge the submissions properly made by the prosecutor. I am of the opinion that the exceptional matters that require to be identified before a discretion can properly be exercised under s 10 of the Crimes (Sentencing Procedure) Act exist in the circumstances of these proceedings. Accordingly, although I find that the defendant is guilty of the offence with which he is charged, I direct pursuant to s 10 (1)(a) of that Act that the charge be dismissed. I make no order 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.