Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Franke) v Nowra Truck & Tractor Repairs Pty Limited [2007] NSWIRComm 240 PROSECUTION: WorkCover Authority of New South Wales (Inspector Franke) PARTIES: DEFENDANT: Nowra Truck & Tractor Repairs Pty Limited FILE NUMBER(S): IRC 168 of 2007 CORAM: Staunton J CATCHWORDS: Occupational health and safety - plea of guilty - general principles - foreseeability - objective seriousness of the offence - general and specific deterrence - no prior convictions - subjective features taken into consideration - financial capacity of defendant considered - victim impact statement considered - penalty imposed - orders as to penalty, moiety and costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 CASES CITED: Morrison v Powercoal Pty Limited [2003] 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 HEARING DATES: 17 September 2007 DATE OF JUDGMENT: 26 September 2007 PROSECUTION: Mr B Docking of counsel SOLICITORS: WorkCover Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr R Royle of counsel SOLICITORS: Marriott Oliver Solicitors JUDGMENT: - 33 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 26/9/2007 Matter No IRC 168 of 2007 WorkCover Authority of New South Wales (Inspector Franke) v Nowra Truck & Tractor Repairs Pty Limited Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 240 1 The defendant in this matter, Nowra Truck & Tractor Repairs Pty Limited (Nowra TTR) has pleaded guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 The incident arises out of an accident involving a Farmliner 640 tractor that occurred on 25 February 2005 at the defendant's Bega workshop. In the course of undertaking repairs the tractor had been split in half, separating the motor end from the gearbox end. As I understand, that is a common procedure given the nature of the work being performed. For ease of access, the front half of the split tractor was suspended above the floor of the workshop by a chain and chain block attached to a mobile gantry. 3 On that day, Mr Stephen Taylor, Mr Philip King and Mr Kynan Douglas, employees of the defendant, were carrying out work on and around the front end of the tractor while it was suspended. Mr Taylor was working underneath the front end of the tractor when the bolt securing the chain gave way and the rear end of the tractor motor fell onto his head resulting in his death. 4 As a result of the accident and the subsequent investigation conducted by WorkCover, the defendant was charged with an offence arising under s 8(1) of the Act. 5 The managing director of the defendant, Mr Ronald Geoffrey Arthur, was also charged under s 8(1) of the Act in relation to the above incident. At the outset of the sentencing proceedings, counsel for the prosecutor sought leave to withdraw proceedings with respect to Mr Arthur in Matter No IRC 169 of 2007. Leave being granted, that matter was formally withdrawn. 6 In relation to the offence concerning Nowra TTR, it is alleged the defendant failed to: Ensure the health, safety and welfare at work of all the defendant's employees, and in particular Kynan Ryan Douglas, Philip Colin King and Stephen Philip Taylor, contrary to section 8(1) of the Act. 7 The particulars in respect of the charge are: (a) There was an actual risk of injury to employees of being struck by a Farmliner 640 tractor (the tractor) whilst working around or underneath the tractor that was split into two and attached to a chain, chain block and mobile gantry. (b) Aspects of the defendant's failures were any one or combination of the following: (i) The defendant failed to prevent the use of a non-lifting chain as a method of supporting the tractor, as opposed to a chain that was proof tested and rated for lifting. (ii) The defendant allowed the passing of the chain over the hook of the chain block instead of using a lifting chain set with an oblong link that went over the hook. (iii) The defendant allowed the end of the chain link to be bolted to the tractor's motor bell housing rather than using a collared eyebolt or a fabricated hook bracket to bolt in a manner that loaded the bolt in direct tension. (iv) The defendant failed to prevent use of a 12 mm bolt as part of the method of bolting the chain through its end links to the tractor's motor bell housing, despite the bolt's 10 mm depth of thread in the hole of the tractor not being sufficient to develop the full load capacity of the bolt. (v) The defendant failed to ensure that employees working around or underneath the tractor after the removal of hardwood blocks that supported the rear of the tractor replaced the hardwood blocks in another suitable location or used some other support such as smaller stand or another support from above. (vi) The defendant failed to provide any safe work method statements or safe operating procedures in respect of lifting or lowering parts of the tractor. (vii) The defendant failed to carry out an adequate risk assessment of what was required to safely undertake the work of repair and maintenance of the tractor. (c) The fatal injuries to Stephen Philip Taylor on 25 February 2005 when the tractor fell directly onto his head as he lay under it were a materialisation of the risk. 8 An agreed statement of facts were tendered by the prosecution. They are as follows: [1] At all material times the defendant was an employer, employing persons including: (a) Stephen Taylor as a service mechanic; (b) Philip King as a senior mechanic. [2] At all material times the defendant carried on business at 3 John Street, North Bega, in the State of New South Wales. [3] The defendant's business core activity is in the mechanical repair and sale of trucks, tractors and farm machinery, and the supply of parts. [4] Mr Ronald Arthur the Managing director of the defendant (referred to as "the defendant's director") is a licensed motor mechanic. At the time of the incident he had owned and managed the defendant's business for 24 years and had been in the mechanical trade for 28 years. At the time of the incident Mr Arthur employed 36 persons in his three dealerships. [5] The deceased, Mr Stephen Taylor, was a trades-qualified motor mechanic. He commenced his apprenticeship in 1968, and obtained his trade qualification in 1972. Throughout his employment, Mr Taylor also attended a range of training courses in relation to the repair and maintenance of particular types of engines and associated automotive parts. The incident [6] The Farmliner 640 tractor involved in the accident had come into the Bega workshop at 3 John Street, North Bega for the repair of an oil leak and slipping clutch approximately 1 to 2 weeks before 25 February 2005. [7] One of the defendant's employees, Mr King, had inspected the tractor at a property at Bodalla and advised the customer it would be safer if he brought it in to be repaired at the workshop. At the time Mr King was a qualified service mechanic of 24 years experience. [8] Prior to the incident on 25 February 2005 the tractor had been split into two halves by the 4th year apprentice Kynan Douglas, with Jonathan Murray assisting him. This procedure involved blocking the front and rear wheels of the tractor to stop it from moving, then undoing the bolts around the bell housing leaving a couple of bolts tight. Mr Murray was the Branch Manager at the time. [9] The system of work was for a floor jack to be placed under each half of the tractor while the rest of the bolts are undone, and when these bolts are all removed the tractor is rolled apart with the aid of floor jacks used as supports. [10] The front half of the tractor was then separated from the rear and the spacing between both halves is approximately 500mm to 1000mm depending on what work is being carried out. The front axle had previously been wedged to prevent it pivoting. [11] After it had been placed into position, a mobile gantry (Safe Working Load of 1000 kg) was positioned over the front half of the split tractor. Attached to the mobile gantry was a 2 ton 'block and tackle' and attached to the hook of the block and tackle was a length of steel chain with no distinguishing markings on it. A bolt, complete with a flat and spring washer, was passed through a link of the chain and this bolt was then screwed into the 'bell housing' of the motor on either side. [12] Wooden blocks were placed under the bell housing or the sump for support, to prevent the tractor from falling, as a safety measure. [13] Stephen Taylor's role as a qualified motor/service mechanic was to carry out the repair and service on a variety of trucks, tractors and farm implements. Mr Taylor arrived at work on 25 February 2005 at approximately 10.30 to 11am to carry out his normal duties. It appears he was working on a truck prior to commencing work on the Farmliner tractor. [14] After lunch, at approximately 1.30pm, Mr Taylor recommenced work and worked on the tractor. At approximately 1.50 pm Mr Taylor called Mr King over to have a look at something under the engine in the sump. [15] The wooden blocks that had been under the tractor as an added safety precaution were removed leaving the load only suspended by the chain attached to the bell housing of the motor. [16] Mr Taylor then slid under the tractor on a 'creeper board' at the near-side of the bell housing whilst Mr King, also on a creeper board, slid underneath the tractor from the front. [17] While both Mr King and Mr Taylor were under the tractor, it appears that a bolt securing the chain to the bell housing gave way, causing the rear-most part of the tractor motor to fall onto Mr Taylor's head, resulting in fatal injuries. [18] Mr King stated that he was under the engine at the time and that both men were looking in the sump. Mr King states then heard a snap and a crash. Mr King said he rolled out and raced downstairs, and told the manager Mr Murray to ring 000. [19] At the time of the incident Mr Douglas was working near the rear of the tractor. He said he heard a 'clunk' noise and looked to find out whether Mr Taylor and Mr King had been trapped. He said that he ran over and as he got there Mr King had managed to get himself out from underneath the tractor. [20] Mr Douglas also stated that he had placed the wooden blocks under the motor end and that they were there for support if the tractor did fall. He also stated that it was Mr Taylor who had removed the blocks from under the rear of the motor. [21] When Mr Douglas was asked if he had ever laid under the tractor having raised the load without the wooden blocks he replied: "Yes and it moved …" [22] Mr Douglas said that the blocks of wood underneath the tractor were used as a safety precaution to ensure that objects suspended with a block and tackle on a gantry were not able to fall, should a failure occur in the lifting attachment. [23] Mr Douglas and Mr King said that they did not remove the wooden blocks from underneath the rear of the engine before the incident and that they believed Mr Taylor had removed them. They assumed that Mr Taylor did this to gain access and to get a better view for inspection purposes. WorkCover's attendance at the scene [24] On 25 February 2005 at approximately 2:00pm WorkCover's Bega office was contacted by Police, requesting the attendance of a WorkCover Inspector at the defendant's premises at 3 John Street, North Bega, where a person had received severe head trauma in a workplace incident. [25] Inspector Dieter Franke and Donna Salway arrived at the defendant's premises at approximately 2:10pm, and observed the following: (a) A tractor blue in colour with a white decal on the muffler side of the motor cowling with faded blue writing indicating "Farmliner". Below this were the words white in colour "INLON PTY LIMITED Australian Distributors of UNIVERSAL FARMLINER TRACTORS". (b) The tractor had been separated into two halves. The motor end had been separated from the gearbox end. (c) The rear of the tractor, which consisted of the gearbox, seat and rear drive wheels was supported by large wooden blocks under the gearbox. At the rear wheels of the tractor there was a red trolley jack. (d) The front of the tractor consisted of the front wheels and the motor. The rearmost end of the motor was resting on the concrete floor. There was nothing underneath any part of this section that may have been used as a support. (e) Underneath the tractor and adjacent to where the motor rested on the concrete floor the Inspectors observed Mr Taylor. (f) Directly in front of Mr Taylor they observed 3 large wooden rectangular blocks adjacent to the outside the front wheels of the tractor. (g) To Mr Taylor's left there was a yellow 4-litre ice cream container that contained a number of bolts, washers and sockets. (h) Adjacent to the yellow ice cream container was another container lying on its side also cut open and this also contained bolts and gaskets. (i) Directly above Mr Taylor and at the rearmost end of the motor of the tractor was a 4-wheeled mobile gantry crane red in colour with the markings SWL 1000kg. The two wheels of the gantry crane that were fitted with a braking mechanism were not engaged. (j) Attached to the mobile gantry crane by means of a permanently fixed swivel hook was a 'block and tackle' (orange in colour with identifying wording "Tiger" with the lettering SWL (Safe Working Load of 2 tonne) was located between the exhaust muffler and just below the top of the motor cowling. The endless chain used to lower or lift this was on the opposite side of the tractor (fuel filter and fuel pump side). Looped around the lifting hook of the block and tackle was a steel chain that had no markings, specific lifting hooks or identifying tags attached to it and the chain consisted of 54 links and was approximately 10mm thick. This chain was looped from one side of the motor to the other side at the rear most part of the motor. (k) Below the fleet guard FF167A fuel filter and directly below what appeared to be a designated lifting attachment was one end of the steel chain that was supporting the weight of the tractor half. The chain was attached through a link in the chain by a bolt, spring washer and flat washer to a screw hole that appeared to be in the bell housing of the motor. A hexagon headed steel bolt with what appeared to be a fine thread, length unknown, was used to attach the chain to the body of the bell housing on the fuel pump side of the motor. (l) Adjacent to Mr Taylor and just above his head near the bell housing on the muffler side of the motor was the other end of the steel link chain hanging loose. (m) It appeared that this was where the other end of the steel chain had been attached with the aid of a bolt and washers and the bolt must have pulled out of its thread causing the motor to fall onto Mr Taylor's head. (n) At the time of the inspection the bolt and washers could not be found, as the body of Mr Taylor had not been moved. [26] After the incident, on 28 February Inspectors Dieter Franke and Martin Constable attended the Bega Police Station to carry out a further inspection of the tractor involved in the incident, which had been impounded by the Police at the request of WorkCover and to take additional photographs. [27] Detective Sergeant Winterflood provided the WorkCover Inspectors with a bolt, a spring washer and a flat washer taken from the scene of the incident by Police forensic staff. Measurements of these items, together with measurements of the chain involved, were taken by the Inspectors. [28] At the conclusion of this inspection, the tractor was transported to Southern Farm Supplies Pty Limited for the purpose of weighing the front part of the tractor. The net weight of the front part of the tractor was revealed to be 1.1 tonnes. The tractor was then returned to the defendant. System of work [29] The attachment method used on 25 February 2005 to support the suspended load of the split tractor was by means of the mobile gantry placed over the front of the tractor to which a block and tackle was attached and then attaching a steel chain by means of a bolt through the link of the chain screwed into either side of the bell housing. As an added safety precaution blocks of wood are placed underneath the tractor for support. [30] Mr Douglas assumed that attaching the bolt to the bell housing through the link was the normal way of doing it. He said that he did not refer to the workshop manual to seek clarification as to how to attach a lifting chain or sling to the motor for the purpose of lifting. [31] Page 16, figure 0/9, of the Workshop Manual shows support in the form of a jack under the motor. Page 101, figure 1/2, shows supports in the form of a trolley jack with a piece of wood. 'Clutch removal', page 102 paragraph 6, states: Put on the hand brake. Insert two wooden wedge blocks between the front axle and its support. Attach a lifting chain to the transmission housing and to a shop hoist, then take the weight off and place a hydraulic jack under the engine oil sump. Page 114, figure 11/18, clearly shows support under the tractor halves. [32] The only documentation for the Farmliner tractor that was available to the mechanics in the Bega workshop on the day of the incident was the Parts Manual, as the workshop manual titled Fiat Trattori was in the defendant's Nowra workshop. Mr Douglas stated that he was provided with a workshop manual for the Farmliner tractor, however he did not use it because he had guidance and the "guys helped" him. [33] The defendant's director believed that Fiat was the original manufacturer and designer of this tractor and that Farmliner were built under license to Fiat. He also believed that the tractor is still the same tractor in principle. [34] Mr Douglas also did not consult the workshop manual when attaching the chain to the bell housing of the motor or when slinging to the motor for the purpose of lifting. [35] When Mr Douglas split the tractor as he was taught, he placed wooden blocks under the both halves as a safety precaution and he believed that this was done in case it fell. [36] Mr King said the purpose of wooden blocks underneath the rear of the engine was to stop it from falling, and not to rely on a jack. [37] Mr Murray, the manager, said that at the time of assisting Mr Douglas with the splitting of the tractor they evaluated it by checking to make sure they had the rear of the motor chocked, they checked that the front half of the tractor was chocked at the pivot point, and that jacks were in the correct position. Mr Murray believed that they were doing the job correctly from what Mr Douglas was instructed by the other employees and on what Mr Murray had seen in the workshop previously. [38] The defendant's director said that, to his knowledge, prior to employees working underneath a split tractor it was common practice to use wooden blocks but not jacks to support tractor halves. [39] WorkCover's investigation revealed that the staff and mechanics were provided with service manuals, or where specific information was required it was put in memo form, service letters, online information, telephone and verbal instructions. [40] WorkCover's investigation also revealed there were no safe work method statements, safe operating procedures or job analysis documents provided to the mechanics for the purpose of lifting or lowering and slinging of the rear of the engine. [41] Lifting, lowering and slinging of engines were covered in the TAFE courses which staff undertook as part of their training. [42] The Inspector's investigation revealed no specific instructions by the defendant not to access the underside of a tractor while it was suspended and had no blocks underneath it for safety. [43] The defendant's director, Mr Arthur, had an expectation (as an experienced mechanic himself) that workers would not access the underside of a suspended tractor that did not have blocks underneath it. [44] When the defendant's director was asked what OH&S system the defendant company had in place to ensure that its undertakings were safe and without risk to its employees, he indicated that there was no documented system however there was a trained First Aid person and that they were carrying out infrequent OH&S meetings. [45] In relation to the training of staff, all apprentices attend TAFE and the mechanics employed by the defendant are licensed with the Motor Vehicle Repair Industry Council (MVRIC). The staff also received on-the-job and external training. The Police's investigation into the incident [46] Detective (Technical) Sergeant Greg Carnell from the Queanbeyan Crime Scene Section of the NSW Police attended the scene of the incident on 25 February 2005 and as a result of his examination of the scene he formed the following opinion: (a) The rear near side portion of the engine of the vehicle had struck the head of the deceased whilst he was in a position beneath it. (b) The weight of the engine had been supported by the overhead block and tackle attached to the gantry. A length of chain connected the block and tackle to the engine by bolts that were screwed into holes in the near and off-side of the bell housing. It was apparent that the bolt screwed into the near side hole of the bell housing had failed and had come away from the hole causing the rear section of the engine to fall to the floor. He believed that for this to have occurred either the bolt had not been screwed in far enough or there was a failure in the threads of the bolt or within the hole in which it was screwed. The defendant's investigation into the incident [47] The defendant's director conducted his own investigation into the incident and found as follows: (a) That a customer had contacted the defendant requesting farm repair for various oil leaks to a Farmliner tractor, including an oil leak in clutch housing; (b) Mr Philip King initially assessed the job and for safety reasons requested that the tractor be brought to the workshop; (c) When the tractor arrived at the North Bega workshop the scope of work was accessed visually and Mr Kynan Douglas was assigned the job of splitting the tractor. The tractor was split using trolley jacks. Once the tractor was split wooden blocks were placed under the front end of the transmission and the weight was lowered onto them. Wooden blocks were also placed under the rear of the engine and the engine was lowered on to them. (d) It appears that the rear of the engine was hoisted to allow for the removal of the lower sump. The approximate weight of 250kg to 275kg at the lifting point (static). The front wheels remained on the floor and supported the front of the engine. A chain was secured to the bell housing using the two vertical 12mm bolt holes, which are normally used to carry the tractor's fuel tank. The equivalent of two bolt holes in the rear transmission case are used to split the rear half of the tractor away from the front half if the engine half is left stationary. They carry approximately the same weight. (e) The bolts were 30mm in length, the washer was 5mm deep and the chain was 10mm thick allowing 15mm of the bolt to engage in the 14mm of available thread in the hole in the side of the tractor. (f) A 10mm chain was attached to the bell housing by the means of passing a 12mm bolt through the end links of the chain. A washer was fitted under the head of the bolt to stop the chain pulling over the bolt. [48] The defendant's investigation concluded that the: (a) Gantry was of a suitable rating; (b) Chain block was of a suitable rating; (c) 10mm galvanized chain was not rated but adequate to lift the weight. Where an 8mm chain can lift a 0.53 tonne weight, and a 10mm chain can lift a 0.86 tonne weight. (d) 2 x 12mm 8.8 bolts were used. (e) Item to slung 250kg to 275kg. [49] The defendant's investigation further revealed that once the lower sump was removed the rear of the engine was again lowered on to wooden blocks. The tractor remained in this position for several days. [50] From this investigation it appears that Mr Taylor may have removed the blocks supporting the rear of the engine to enable a better view of the work. [51] The defendant's director concluded that at, the time of the incident on 25 February 2005, the bolt had pulled out of the thread in the bell housing, and found that the failed thread was only tapped to approximately 10mm to 12mm and was of poor quality. Expert's opinion [52] Mr Christopher Turner, Civil Engineer, was engaged by WorkCover to provide an expert's opinion in relation to the method of support of the tractor involved in the incident that resulted in the death of Mr Taylor . Mr Turner found that there were a number of significant deficiencies in the method used to support the front section of the tractor from above. [53] Mr Turner found that the deficiencies in the method of support were: (a) The bolting of the chain link to the casing rather than connecting the chain to a lifting bracket or eyebolt, the limited depth of thread in the hole and the bolt not fully engaging in the thread. (b) The use of non-lifting chain and placing it directly over the hook instead of using rated lifting slings with an oblong link to place over the hook. [54] Mr Turner was also of the opinion that: (a) Working under suspended load is a high risk activity and where practical, loads should not be suspended over people. However, where this is not practical it is essential to ensure the support system is adequate for the purpose, and sometimes that requires the provision of additional supports such as the hardwood blocks. (b) A gantry and chain block system, if correctly installed, would be assessed as adequate to permit the removal of the hardwood supports for inspection purposes. However it would be prudent to leave them in place if they were not in the way. He would also expect the load to be lowered onto a rigid support whilst physical work was being undertaken. (c) The lifting brackets on the cylinder head are not intended for supporting the front end of the tractor and, whilst they may be capable of supporting the load, would not be as strong as correct connections to the boltholes that were used. System of work after the incident [55] On 26 February 2005 the defendant's director issued a written Memo: "Effective Immediately Important Memo all staff Whilst the investigation takes place into Friday's tragic accident. NO ITEM is to be lifted with chain, wire rope, woven sling or rope without firstly · A Full Job safety Analysis being carried out. · A method statement, a listing of equipment to be used and an intended work method being presented prior to work being commenced inspected and signed off on by management. Reminder: No member of staff or customer is ever to work on or under any raised or slung item without first safely supporting the item with suitable stands or blocks. If you are unsure ask your supervisor. A full review of lifting procedures will be undertaken as soon as possible." [56] An organisational group chart has since been developed designating areas of responsibilities for all staff at the 3 dealerships controlled by the defendant. [57] Further since the incident: (a) There are documented OH&S Meetings held on a regular basis; (b) More training is provided to staff; (c) Workplace inspections are carried out; (d) A comprehensive Occupational Health & Safety Manual has been developed, complete with risk assessment and risk control worksheets; (e) The responsibilities of managers, supervisors and employees have been documented; (f) Updated gearbox jacks and more heavy duty 'jack stands' have been obtained; (g) There is additional signage in the workshop; (h) A safety assessor has come through the workshop removing a number of unsafe items; (i) New chains with safe working loads attached have been obtained. (j) A full-time OH&S Officer has been employed. (k) A workplace visit by WorkCover Inspector John Patton in August 2007, as part of a project following up workers compensation claims, indicated that the systems put in place by the defendant after the February 2005 incident rated highly against the Serious About Safety checklist used by Inspector Patton. Plea of guilty [58] The defendant entered a plea of guilty at the earliest opportunity and is entitled to have this taken into account at the time of sentencing. No prior convictions [59] The defendant has no prior convictions under the Occupational Health & Safety Act 2000. Consequently the maximum penalty for this offence is $550,000 – the defendant being a corporation. Cooperation with the investigating authority [60] The defendant has cooperated with WorkCover throughout its investigation of this incident. Moiety [61] The prosecution seeks a moiety of any fine that the Court may impose. Costs [62] The prosecution seeks its reasonable costs and disbursements in an amount as agreed with defendant, or failing agreement, as assessed. 9 In addition to the agreed facts, the prosecutor has also tendered an indexed bundle of documents including the following: (i) A WorkCover disclosing the defendant has no prior convictions. (ii) Fourteen colour photographs taken by Inspectors Franke, Salway and Constable depicting the scene of the accident as well as the machinery involved. (iii) An undated Factual Inspection Report compiled by Inspector Franke. (iv) WorkCover Statements of Inspectors Franke, Salway and Constable, dated 22 August 2008. (v) A WorkCover Engineering Report compiled by Mr Chris Turner. Mr Turner is a senior Engineer employed as State Co-ordinator Plant-Mechanical, Hazard Management Group with WorkCover. He holds a Bachelor of Engineering from the University of New South Wales and he has skills and experience in civil and mechanical engineering, construction techniques and plant safety assessment. He has given expert evidence in numerous matters before this Court, as well as the Supreme Court and the Coroner's Court. Mr Turner's report includes extracts of a Fiat Trattori tractor manual as well as photographs taken by Inspector Constable. (vi) A copy of a memo titled 'Effective Immediately' issued by Mr Ronald Arthur, managing director of Nowra TTR. It is understood this was issued the day after Mr Taylor's accident. (vii) Extracts from the Nowra TTR Workshop manual for the tractor. This document is referred to in the agreed facts. (viii) A Victim Impact Statement from Ms Robyn Lucas, partner of the deceased, Mr Stephen Taylor. 10 On behalf of the defendant, the following material was tendered without objection: (i) Affidavit of Mr Ronald Geoffrey Arthur. Mr Arthur is the managing director of Nowra TTR. His affidavit details the company's history, its regional operations and its current financial position. He also deposes to the good safety record of the company during its 26 years of operation and the actions taken by the defendant following Mr Taylor's death. (ii) Affidavit of Mr James O'Rourke. Mr O'Rourke is a director of Birdanco Nominees Pty Limited, which operates as RSM Bird Cameron. RSM Bird Cameron have been the accountants for the defendant company for approximately 26 years. Mr O'Rourke's affidavit sets out the financial circumstances of the defendant since 2004. 11 Oral evidence was received during the course of proceedings from Mr Arthur as well as Mr Ian Rolfe, Division Manager with the Motor Trades Association of NSW. Mr Rolfe's evidence was in the nature of character evidence and the professional reputation of Mr Arthur reflected in the defendant's good standing in the community. Relevant principles 12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA 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]: .... it 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 were intended to provide 'further guidance and structure to judicial discretion.' 14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 15 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: ... 16 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 17 On the issue of foreseeability, the Full Bench in Capral also stated: 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. 18 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 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. 19 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 (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 20 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 21 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 22 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... Considerations 23 The defendant has no prior convictions and as such, the maximum penalty that may be imposed is $550,000. 24 As outlined in the agreed facts, a Farmliner 640 tractor was brought into the defendant's Bega workshop to repair oil leaks and a slipping clutch. In order for the repairs to be carried out, the tractor needed to be split into the two halves in the manner described and then hoisted by a mobile gantry in order to facilitate access for the workers undertaking repairs. 25 The mobile gantry had a two tonne block and tackle with a lifting hook. A length of steel chain was hung over the hook and the chain was then attached to one side of the split tractor motor and looped to the other side. The chain was secured on both sides of the motor by a bolt and a washer. The bolt passed through the link of the chain and was screwed in on either side of the tractor motor's bell housing. Mr Douglas, the employee charged with carrying out the work of splitting and suspending the tractor, also placed wooden blocks underneath the bell housing of the tractor motor as an additional safeguard in order to further secure the tractor from falling. 26 The net weight of the split front half of the tractor was 1.1 tonnes. 27 Given the significant weight of the suspended tractor part and that employees were required to work under the suspended load, it was essential the method for hoisting the load was safe, that the load was properly supported to prevent it falling and the risks to safety that such work represented had been addressed in a comprehensive and failsafe manner. As well, it was the responsibility of the defendant to ensure that its workers were instructed and understood how to safely undertake that task. 28 If such measures were not in place and observed, it was clearly foreseeable workers would be placed at risk of injury. 29 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 30 The defendant did not have in place any type of work method for lifting and slinging the motor of the tractor, nor did it conduct any training of its employees for that task. There was no common method for lifting tractors as the defendant conducted repairs on a number of different tractor models. Employees such as Mr Douglas learnt by on the job instruction and observing other more experienced employees. 31 The defendant did have a Fiat Trattori workshop manual in its possession, which was for a tractor model similar to the Farmliner tractor being repaired. However, Mr Douglas did not refer to the manual as it was at the Nowra workshop on the day of the incident. 32 The method adopted by Mr Douglas to split and support the tractor did not accord with the diagrams or specifications set out in the Fiat Trattori manual as to how to undertake such a task. As the agreed facts confirm, Mr Douglas attached the chain to the gantry hook contrary to the diagram of figure 11/18 of that manual. That figure displays the links of the lifting chain passing through an oblong link which then attaches to the mobile gantry hook. 33 The risk to safety posed by merely hanging the chain on the gantry hook was also commented upon by Mr Turner, the engineer who compiled the expert report for WorkCover. Page 4 of his report stated as follows: (iii) Passing the chain over the hook is unsafe, or poor practice at best. It can damage the chain by inducing bending of the link lying flat over the hook and if the load is uneven or moving the chain can pull over the hook and allow the load to drop on one side unexpectedly. … 34 Additionally, the chain used was not a designated lifting chain and had not been proof tested or rated for lifting. It is fortunate, on one view, that subsequent investigations revealed the chain was actually adequate to lift the load. 35 There were additional problems associated with the chain, particularly the method by which the chain link ends were secured to the split tractor's bell housing. 36 The bolt that passed through the chain was secured to bolt holes on the tractor bell housing which normally carries the tractor's fuel tank. The bolt was installed in such a way that its capacity to engage properly was compromised due to the depth of the thread in the bolt hole. Subsequent investigations by the defendant into the accident revealed that the failed thread was also of poor quality. As a result, the bolt could not develop its full load capacity and, ultimately, was pulled out as it could not support the weight of the split front half of the tractor. 37 Further, the chain links should have been secured by way of a collared eyebolt or fabricated brackets fastened within the boltholes. This would have ensured the bolt would have been loaded in direct tension. Mr Turner's report stated that this was a much more efficient method than connecting the chain to the bolt hole. 38 The defendant was aware prior to the accident that brackets could be used to secure the chain instead of securing the chain to the bolt hole directly. The Fiat Trattori manual contained diagrams illustrating the proper use of such brackets for lifting. Additionally, Mr Arthur gave evidence that the defendant had used and manufactured brackets on site prior to the accident. 39 The risk to safety faced by workers arising from the deficiencies in the method of suspension of the split half of the tractor was significantly heightened by the removal of the wooden blocks under the tractor while work was in progress. It would seem the support blocks were removed by Mr Taylor to enable a better view of, and/or access to, the section of the tractor he was working on. 40 The defendant did not have any policies or procedures in place directing employees not to access the underside of the tractor without proper lifting procedures and ensuring the wooden blocks remained in place. The unsafe system of work that resulted was self evident. That is, once the blocks were removed from under the tractor, the suspended load was supported only by the chain on the mobile gantry which, in this case, had clearly not been adequately secured. 41 As an experienced mechanic himself, Mr Arthur did not expect a long term employee such as Mr Taylor to work under the tractor without the presence of support blocks. That expectation was misguided. On the evidence of Mr Douglas, it was not unknown that, from time to time, the wooden support blocks would be moved to enable access to the tractor while repairs were being effected. If that was the case, a procedure should have been in place to support the tractor that made provision for support to be provided that accommodated the need for access in order to effect necessary repairs. 42 Reliance on an experienced employee is clearly deficient as a means of addressing known and foreseeable risks to safety. Long standing employees can become over familiar with the work being performed and overlook the need to carry out work according to designated safe work practices. It is the non-delegable responsibility of an employer under the Act to ensure that safe methods for conducting work are in place and abided by all employees, regardless of their experience. As was observed by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: 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. 43 The failure to have in place those safeguards in the present case had tragic consequences, resulting in the death of Mr Taylor. 44 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 45 Immediately following the accident, Mr Arthur issued a written memo to all employees stating that no item was to be lifted with a chain or sling unless a job safety analysis and a proper work method statement was submitted and had been inspected and signed off by management. 46 In March 2005, the defendant also engaged a risk management consultant to carry out an extensive review of its occupational health and safety systems. The defendant now employs a full-time occupational health and safety officer, who is responsible for coordinating the occupational health and safety practices for the defendant's operations. Employees also regularly participate in WorkCover and industry seminars in the South Coast region. 47 The defendant also introduced a number of safe work procedures, including procedures for splitting and lifting tractors. The new lifting procedure emphasises that workers are not to work under a raised item unless it is supported by wooden blocks or stands. During the proceedings, Mr Arthur gave evidence that the defendant now manufactures steel stands on site for tractors brought in for repairs. The tractor rests on top of the stand and is physically bolted to it. The stands are used in conjunction with the gantry chain lifting method. Mr Arthur also deposed in his affidavit that: [58] ... These stands are bolted to the tractor prior to splitting when we are able to do so. If this is not possible because there are no attachment points, the tractor is split a small distance with the stands being bolted to the base of the clutch housing. This has virtually eliminated the possibility of someone removing the stands (which are used for the same purpose as the hardwood blocks previously were) whilst someone is working under the tractor. All lifting equipment is also now inspected to ensure it is in accordance with national standards by an outside contractor. 48 The majority of the defendant's employees have now been trained in the lifting procedure described by Mr Arthur. The defendant also ensures that oblong links and proper lifting chains are used when lifting machinery. 49 The defendant's prompt adoption of all of the above safety measures is commendable. Nevertheless, these were steps that could have been implemented by the defendant prior to the accident. 50 Taking into account all of the above matters, I assess the offence as being objectively serious and I propose to address penalty on that basis. 51 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 52 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 53 General deterrence is a relevant consideration. The dangers associated with working with suspended and heavy machinery is an ongoing risk faced by employees working in a wide range of industries, particularly those where large scale plant and equipment is being repaired such as in the defendant's business. 54 The defendant continues to operate its truck and tractor repairs business. In my view, specific deterrence is a relevant consideration but should be tempered substantially to reflect the defendant's substantial efforts to strengthen its occupational health and safety system following the accident. 55 Material has been produced relevant to the defendant's financial circumstances. Incapacity to pay a fine was not raised by the defendant. Rather, the material was put forward to place both the defendant and Mr Arthur's current financial circumstances in context. 56 In assessing a defendant's position to pay a fine, the court is guided by s 6 of the Fines Act 1996 which states as follows: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 57 The meaning of 'fine' for the purposes of the Fines Act is any monetary penalty imposed by the Court as well as any costs payable by the defendant. Solicitors for the prosecutor have confirmed their costs estimate at $11,574.39. 58 For the tax years 2004, 2005 and 2006, the defendant's gross trading profit was approximately $1.11, $1.25 and $1.20 million respectively. However, after taking into account total liabilities, the only year that the company managed to record a profit was in 2005 when the company returned a profit of $179,424. In 2004 and 2006, the company recorded losses of $29,584 and $82,910 respectively. 59 Mr Arthur's unchallenged affidavit evidence was that the company has operated under difficult and uncertain financial conditions for the past few years, particularly since the deregulation of the dairy industry in 2000. As a result of deregulation, Mr Arthur estimated the company lost approximately 40% to 50% of its dairy farmer customer base. As well, the defendant's cash flow was affected for some months until funds became available to the dairy industry from the dairy assistance package. 60 The defendant also operates in an area that has been severely impacted by longstanding drought. This has affected the business viability of the defendant company because of the downturn in farming clients purchasing new trucks and tractors. In February 2007, the company obtained financial assistance from the New South Wales Department of State and Regional Development payroll tax relief programme for business drought assistance. 61 The defendant has also restructured its debt with the National Australia Bank and currently has a bank bill facility of $580,000. Mr Arthur deposed that the bank bill facility was used to meet the workers compensation premium paid as the defendant's contribution to the worker's compensation payment for Mr Taylor's death. It was also used to pay for additional occupational health and safety training and hiring of additional employees. The debt is supported by a personal guarantee made by Mr Arthur. 62 Mr O'Rourke's affidavit confirmed all of the above matters with respect to the company. He stated: [5] Sales have increased only 1.25% over three years. The gross profit margin has stayed the same. Direct costs have increased by 1.59% over three years which has resulted in the trading contribution margin being reduced by 2%. This reduction in the trading contribution along with increases in overheads (particularly wages and insurance) have led to a reduction in the net profit margin. Insurance costs have also increased 253% over the three years. … [12] To summarise, NTTR is in a delicate financial position. The trend over the last couple years has been little profit or net loss. This has lead to increased external borrowings to maintain survival. If this trend continues the continued viability of the business is questionable. 63 Based on all of the above, I would characterise the company as a medium sized business that has traded profitably in the past but has experienced some financial difficulties over recent years due to the external events identified. Evidence given by Mr Arthur is that the company is expected to make a net profit of approximately $60,000 to $70,000 for the 2007 financial year. Overall, it is apparent the defendant's financial position is one that I would characterise as currently financially viable but certainly not robust. In that sense, I accept the defendant is financially delicately balanced and any unexpected and significant demand on its cash resources could leave it in straitened financial circumstances. 64 The defendant is essentially a family run business. The main shareholders in the company are Mr Arthur, his wife and his son. Clearly, the imposition of a significant fine on the defendant would have a direct impact on Mr Arthur and his family as it is the main source of income for the family. 65 In determining the amount to be fixed for penalty, I adopt the approach of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 66 A Victim Impact Statement prepared by Ms Robyn Lucas, Mr Taylor's partner, has been placed before the Court. That statement has been received in accordance with s 28(3) of the Crimes (Sentencing Procedure) Act 1999 which states: 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. 67 Ms Lucas's statement described the anguish of the sudden and unexpected loss of Mr Taylor and the profound sense of emptiness she has experienced since his untimely death two and a half years ago. Understandably, that sense of loss and loneliness is something she constantly grapples with, as she explained: My life is so lonely without Steve. I am so alone now. I have some truly wonderful, special friends that prop me up and keep me going and for that I am very lucky, but it feels like I am only half alive. 68 As Ms Lucas's statement starkly illustrates, workplace accidents have a deeply personal and ongoing impact on families and loved ones way beyond the immediate vicinity of the workplace. 69 The defendant entered its plea at the first available opportunity and is entitled to have that taken into account in the determination of penalty. In doing so, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. 70 There are additional and powerful subjective features which should be taken into account in the defendant's favour. 71 The prosecutor acknowledged Mr Arthur, on behalf of the company, has accepted responsibility and expressed remorse and contrition for the accident involving Mr Taylor. Shortly after the accident, Mr Arthur met with Mr Taylor's family. He organised counselling for both his employees and members of Mr Taylor's family. He also continues to maintain contact with both Ms Lucas and other members of Mr Taylor's family. 72 It is apparent that the accident has affected Mr Arthur deeply. As he stated in his affidavit: [56] I will always live with the responsibility for Stephen's death and the pain that it has caused Robyn, his family and his friends. Stephen's death has changed all our lives forever. 73 Mr Arthur had initially considered shutting the business down following the accident involving Mr Taylor. However, he decided to continue with the business as, he said: [60] ... I owe it to our staff, customers and Stephen's family to try and continue running the business. 74 The defendant remains impressively committed to upholding its occupational health and safety obligations for its workforce. The rigorous actions taken by the defendant to improve its occupational health and safety systems following the accident have already been detailed above. Mr Arthur estimated the defendant has spent approximately $300,000 to implement the various changes to its work safety systems. 75 WorkCover visited the defendant's premises in August of 2007 as part of a project following up on workers compensation claims. The systems in place by the defendant were rated highly against the Serious About Safety checklist used by the WorkCover Inspector who visited the site. The defendant is to be commended for its genuine commitment to implementing rigorous safety systems in the aftermath of Mr Taylor's accident. 76 On behalf of the defendant, Mr Arthur has been very proactive in promoting workplace safety education within the South Coast region. In his evidence during the proceedings, he confirmed he had liaised with WorkCover in Bega to organise and provide equipment for farm safety workshops. As well, the defendant also provides education to local farmers and industry on occupational health and safety matters and participates in local WorkCover groups such as the Industry Solutions group and Industry Reference group. Additionally, Mr Arthur has made himself available to speak at occupational health and safety seminars conducted by the Motor Traders' Association. 77 A considerable number of testimonials were received attesting to the good character, professionalism and commitment to workplace safety of Mr Arthur, all of which reflect favourably on the defendant. 78 It is apparent from a perusal of that material that Mr Arthur, and through him the defendant, are held in high esteem within the local community. The fact that the defendant has operated for 26 years without conviction until Mr Taylor's accident would attest to the general safe systems of work followed by the defendant during that period. 79 The prosecutor acknowledged the defendant fully cooperated with WorkCover in the course of its investigations into the incident. 80 Taking into account all the factors I have referred to, I determine a penalty in this matter of $ 68,250. 81 I make the following orders: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $68,250; (iii) I allocate a moiety on penalty to the prosecutor in the usual terms; (iv) The defendant is to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.