Industrial Court of New South Wales CITATION: Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 PROSECUTOR: Inspector John Patton PARTIES: DEFENDANT: Western Freight Management Pty Limited FILE NUMBER(S): IRC 3547 of 2006 CORAM: Boland J President CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - sentencing - road transport industry - employee crushed by reversing truck - fatality - sentencing considerations - objective seriousness - known risk - simple remedial steps available - mitigating factors - steps taken following incident - remorse and contrition - parity and consistency - penalty imposed. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000 Protection of the Environment Operations (Noise Control) Regulation 2008 Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Ampol Ltd v Environment Protection Authority (Court of Criminal Appeal, 26 October 1995, unreported) Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; 99 IR 159 Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16; 99 IR 137 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades)(No 2) [2007] NSWIRComm 168 Inspector Patton v Star Track Express Pty Ltd [2007] NSWIRComm 192 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; 147 IR 117 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Siganto v The Queen [1998] HCA 74; 194 CLR 656 WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; 138 IR 21 WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported) WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation [2001] NSWIRComm 323; 111 IR 442 WorkCover Authority of New South Wales (Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm 258; 119 IR 8 WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; 105 IR 236 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 HEARING DATES: 20 April 2009 DATE OF JUDGMENT: 30 July 2009 PROSECUTOR: Mr M Cahill of counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr G J Hatcher SC with Mr S Coleman of counsel King-Christopher Carpenter, Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday 30 July 2009 Matter No IRC 3547 of 2006 INSPECTOR JOHN PATTON v WESTERN FREIGHT MANAGEMENT PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 124 1 On 20 November 2008, judgment was given in Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217, in which Western Freight Management Pty Ltd ('the defendant') was found guilty of an offence under section 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). The offence related to an incident involving the defendant's employee, Mr Brian Lloyd, who was fatally injured after he was caught between the rear of a reversing trailer and a loading dock. 2 The incident was described at [33] - [49] of the liability judgment: [33] On the evening of 2 December 2004, Mr Norman and Mr Lloyd both attended the Waverley Drive site to haul trailers to other STE depots. There was a conflict in the evidence as to whether there was any traffic management plan for the depot that determined the way the drivers were to enter the depot or their movements once inside the depot. Mr Parr said that there was a formal traffic management plan which detailed movement of trailers. However, he could not recall if the plan was documented. He said that he understood that it was a requirement for line haul drivers, that is Mr Norman and Mr Lloyd, to enter the depot through the northern gate and exit via the southern gate. [34] However, Mr Norman, Mr Stefanovski and Mr Bradley were not aware of any traffic management plan regarding the movement of vehicles at the depot. Mr Bradley said that he was not in possession of any formal traffic management plan for the depot. Nor was there any formal procedure for the actual movement of line haul trucks entering, lining up to the docks and subsequently departing from the site. Mr Norman gave evidence that he did not know of any traffic management plan for the Waverley Drive depot and that when he had commenced work there in 1995 he was not given any specific direction about which gate to enter from. He was allowed to enter from either gate depending on which was suitable to him and also having regard to the number and location of trucks already in the depot. In terms of exiting the premises, Mr Norman stated that from 2003, when a semi trailer was parked outside the second southern dock, Dock 2, it prevented him from exiting out of the northern gate. This necessitated him exiting out of the southern gate and, in doing so, having to perform the reverse jackknife procedure. Even when a trailer was not on Dock 2, the number and location of other vehicles in the depot at times prevented Mr Norman from exiting out of the northern gate. [35] Mr Stefanovski said that the practice for him and other fleet drivers was to enter and exit via the northern gate. Mr Stefanovski noted that line haul drivers often entered and exited through the northern gate but said that when a trailer was parked on the second loading dock, they would exit out of the southern gate. [36] Once Mr Norman had entered the depot on 2 December 2004, he drove to the most southern of the southern loading docks, known as Dock 1. Inside the depot there were docks located in the northern area of the depot ("the northern docks") and docks located in the southern area ("the southern docks"). The southern docks were used for line haul freight movement, and consisted of two loading docks. Dock 1 was located on the most southern side of the southern docks, and was the dock where Mr Norman parked his trailer on 2 December 2004. Dock 2 was located on the northern side of the southern docks, and was the dock where Mr Lloyd's trailer was parked on the night of the incident. The layout of the northern docks is not relevant to the proceedings. [37] In order for his trailer to be loaded by STE employees, Mr Norman reversed the trailer up on to a ramp connected to the loading dock at Dock 1. Mr Lloyd reversed his trailer towards Dock 2. Mr Peters explained that when the original depot had been built, the docks were at the wrong height and the ramps were installed to bring the trailer up in line with the height of the loading dock. Once on the ramp, Mr Norman's trailer was loaded with freight by STE employees. [38] Mr Stefanovski was involved in handling and loading and unloading freight at the depot and helped load the freight into Mr Norman's trailer and Mr Lloyd's trailer on the night of the incident. Mr Stefanovski gave evidence that in terms of procedure as to which of the two trailers were loaded first, he said it was always the trailer located on the most southern dock, Dock 1, although he did not know why that was the case. On the night of the incident, Mr Norman's trailer was located at Dock 1 and was the trailer loaded first. [39] The freight was loaded on to Mr Norman's trailer by way of a conveyor belt which, according to Mr Norman, was 'extremely loud', but not so loud that when he had a conversation with Mr Lloyd that he had to raise his voice. Mr Stefanovski agreed that in the area in front of the dock, whilst the conveyor was noisy, a person could still hold a conversation without raising their voice. [40] When STE employees finished loading Mr Norman's trailer, Mr Norman entered the cab of the prime mover and drove the trailer forward, away from the dock. Mr Norman then exited the cab and he and Mr Lloyd entered the depot office to get their Subcontractor Payment Voucher's (SPV's) signed off and to collect security seals. The vouchers were required to be completed at the depot to ensure the payment of WFM drivers. Both men then returned to the rear of Mr Norman's trailer. Mr Norman stated that he closed one of his two rear doors and noticed that Mr Lloyd was closing the other door. Mr Norman explained in his evidence he would have done the same for Mr Lloyd and that it was a common practice between the two men to help each other out. However, Mr Schmidt stated that it was WFM procedure for the driver to close their own trailer doors and that there was no need for more than one WFM employee to be involved in the process of closing the doors. He was not aware, however, of the work practice between the two line haul drivers at the Waverley Drive depot and had not attended the depot prior to the incident. Mr Peters also gave evidence that only one WFM driver was required to close the doors or apply security seals, but said there was no mention of this in the Company's Drivers' Manual, as there was no requirement for two drivers to close the doors. [41] After Mr Norman and Mr Lloyd closed Mr Norman's trailer doors, they applied the security seals. The security seals were plastic seals with a security number or barcode on them and were required to be applied after each trailer was loaded. Once applied, the security seals could only be removed by physically breaking the seal. The driver recorded the seal details and upon arrival at the destination, the seals were physically checked to ensure that they were still intact and that the load had not been tampered with. Mr Schmidt explained that 'what was supposed to happen' was for a supervisor or security guard at the depot to apply the security seals to the truck and sign off on the relevant paperwork and despatch the driver. However, on the night of the incident it was Mr Norman, with the assistance of Mr Lloyd, who applied the security seals to the rear doors of Mr Norman's trailer. Mr Norman's evidence was that he understood that the responsibility to seal the doors lay with STE employees, but that he had always applied the seals himself. [42] After the seals were applied, Mr Norman and Mr Lloyd spoke briefly and Mr Norman said to Mr Lloyd: "I'll see you later, mate. See you in up Sydney." He said, "Yeah, catch you later" and I turned round and said once again. "Righto, mate, catch ya" and I walked up the side of my trailer to hop into the cab. [43] Mr Stefanovski confirmed that he saw Mr Lloyd with Mr Norman after they had closed the doors and applied the security seals and that he had heard Mr Norman say to Mr Lloyd that he would see him in Sydney. Mr Parr also confirmed that he saw Mr Lloyd and Mr Norman talk briefly. In addition, Mr Parr said the last time he saw Mr Lloyd was in the area in front of the loading dock, Dock 1. It was his evidence that at this time the trailer was five metres away from the dock, although he could not recall whether the trailer doors were closed at this time. [44] After farewelling Mr Lloyd, Mr Norman re-entered the cab and completed the details of his SPV on his timesheet. Mr Norman was unable to exit through the northern gate as there was insufficient room to exit past Mr Lloyd's trailer and so he prepared to exit out of the southern gate, which had the garden bed located near it. In his evidence Mr Norman explained the problem with the location of the garden bed: Q. I want to direct your attention - what I am talking about, did you notice something when you were driving the semi-trailer with the trailer attached either in or out of the premises about where that garden bed was located? A. Yes, it was in a stupid place. Q. Can you tell His Honour why you say it was in a stupid place? A. Because the access and coming in and turning circle of the semi which cuts across the prime mover would drag across the gutter and sometimes nudged the gutter to get in or out. The garden should have never been put there. The guard, if I may put it, there (indicated), this started there (indicated). [45] With the garden bed located where it was, in order to exit the southern gate without hitting the bed, Mr Norman was required to perform a reverse jackknife manoeuvre. He described the manoeuvre as follows: You would have to move forward if you were not already forward of the dock. You would then have to reverse back, jackknife the prime mover which would make the trailer go like that (indicated) then you would turn sharp to the left, to the right. The trailer would follow you out around the garden bed. [46] Mr Norman explained that as a result of the jackknife manoeuvre the trailer would swing to the left and the right hand side of the trailer would come close to the dock, and often made contact with dock. It would then create space for Mr Norman to swing around and exit the depot without hitting the garden bed. [47] On the night of the incident, after completing his paperwork, Mr Norman checked both mirrors, selected reverse gear, checked both mirrors again, and then looked in the right hand mirror and commenced the reverse jackknife manoeuvre. Mr Norman explained that looking into his rear view mirrors he was unable to see the area between the rear of the trailer and the front of the dock, that is, the area immediately behind the trailer: As I prepared to reverse back onto the dock, I could see wholly and solely down the left hand side and down right hand side and in the front of the vehicle and nothing in directly behind the vehicle. [48] As Mr Norman reversed towards the dock, Mr Lloyd became trapped between the trailer and the dock. Mr Norman selected the gear to go forward and started to drive towards the gate. There was no dispute between the parties that Mr Norman was unaware that Mr Lloyd was behind the trailer and that he did not know that the trailer had struck Mr Lloyd. Mr Norman only became aware of what had happened after he heard shouting for him to stop and was informed by Mr Parr that Mr Lloyd had been trapped between the trailer and the dock. [49] Mr Stefanovski said in his evidence that as the trailer was reversed he had heard a scream and had seen Mr Lloyd 'pinned' between the dock and the trailer. Mr Stefanovski stopped the conveyor belt that was still loading Mr Lloyd's trailer and as he went to call an ambulance, he saw a number of people run to assist Mr Lloyd. In anticipation of the arrival of the ambulance, Mr Norman drove his truck out of the southern exit and parked it on the street to ensure that the ambulance could reach Mr Lloyd quickly. Tragically, the crush injuries sustained by Mr Lloyd were too severe and he died. 3 The particulars of the offence were set out at [3] of the liability judgment: [3] The particulars of the offence were that the defendant: 1. Failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 2. Failed to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 3. Failed to ensure that sufficient room was available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 4. Failed to ensure adequate separation was maintained, at all times, between moving vehicles and pedestrians so that its employees, whilst on the ground as pedestrians, were not in danger of being struck by moving vehicles. 4 The Court found the first three particulars of the charge made out, but struck out the fourth particular. At [126] the Court said: [126] I find that the offence is made out, It follows that the defendant is guilty of an offence under s 8(1) of the 2000 OHS Act unless it is able to make out a defence under s 28 of that Act. 5 The defences to the charge were not made out and the Court made the following orders: [156] I find that the defendant, Western Freight Management Pty Ltd is guilty of an offence under s 8(1) of the Occupational Health and Safety Act 2000. [157] The defendant will appear for sentencing at a date and time to be fixed. 6 Submissions on sentence were heard on 20 April 2009. This judgment deals with sentence. The evidence 7 The defendant relied on the affidavit of Mr John Lex Peters sworn 16 April 2009. Mr Peters was the Managing Director of the defendant and deposed that he had been involved in the trucking industry since he was 17 years old. Mr Peters was not required for cross-examination. 8 Mr Peters explained the company history of the defendant: In 1978, I was lent a truck by my brother in law – an articulated prime mover and I went on to form a partnership with my wife in 1980, known as Col John Transport. During the years to 1983, the partnership expanded and became part of a company called Mountain Bulk Haulage Pty Ltd, which was in effect an owner/driver's cooperative, which was eventually bought out. I then formed a company with a fellow driver as the other director, known as McDonald Peters Transport. This grew into Western Freight Management, the defendant McDonald Peters Transport commenced express work for a company called Willmott Express which was then purchased by Multigroup Distribution Services, which eventually became Discount Freight Express Star Track Express. During this time, up until the mid 1990's McDonald Peters Transport grew from a company with two trucks with the directors driving on runs to Wollongong and Newcastle, to a regionally based linehaul company with trucks running to Perth, Brisbane and Adelaide. In about 1998, McDonald Peters hired Mr Ken Auchterlonie as a General Manager. He had previously been the Australian General Manager of Mayne Nickless. In about 2000, the company went into administration, but traded out of its difficulties, and Malcolm McDonald, my then partner, left the company, leaving me as a director along with my wife. Ken Auchterlonie remained providing management expertise. The company became Western Freight Management Pty Limited in 2000... 9 Mr Peters then set out the defendant's approach to training and safety. He deposed that the defendant had engaged an accredited training provider, On Time Resources ('OTR'), to provide Certificate 1, 2 and 3 in Transport and Distribution. Completion of the Certificate 3 course was compulsory for all drivers when they commenced employment with the defendant. The training consisted of formal instructions, various manuals and modules on which drivers were tested. Many of the modules dealt with the Driver's Manual, which was annexed to Mr Peters' affidavit in its third and most current edition. It is sufficient to note that the Manual current at the time of the incident included the following paragraph on reversing (which was set out at [51] of the liability judgment): 4.11 REVERSING When reversing, follow these practices: Get out and check behind the vehicle. Check clearances at sides, top and bottom. Do not rely on "helpers" to guide you when reversing – they will not pay for damage they may cause. 10 The third edition of the Manual, current at the time of hearing, included an updated paragraph on reversing: 4.10 Reversing Reversing must be kept to an absolute minimum! If you must reverse, follow these practices: 1) Think about it again first - do you really need to? 2) Get out and check behind the vehicle; 3) Check clearances at sides, top and bottom; 4) Obey all traffic and pedestrian controls and directions; HAZARD LIGHTS MUST BE ON WHEN REVERSING Remember that YOU WILL BE ALWAYS HELD TOTALLY RESPONSIBLE for any damage caused when reversing even when somebody may be directing you. 11 Mr Peters explained that since the incident, the defendant's reversing procedure, as outlined in its Driver's Manual, had been emphasised to drivers, including the need for the driver to get out and check behind the truck and not to rely merely on spotters to guide a driver. 12 In addition to the training provided by the defendant, Mr Peters deposed that many of the defendant's customers provided additional, often site specific, training and he annexed a list of those customers and the training they provided. Also annexed to Mr Peters' affidavit was a spreadsheet which revealed that from July 2001 to February 2009 the defendant had spent $133,531 on training expenses. 13 Mr Peters explained that the defendant had a 'state of the art safety and communications system'. The system consisted of mobile telephones, radio transceivers and satellite telephones where long haul trucks were out of range of cellular networks. In addition, each truck was fitted with a device which enabled the truck's location, speed and direction to be tracked, in real time, from the defendant's Orange or Blacktown depots. Mr Peters also deposed that the defendant ensured that the fleet of trucks was mechanically safe and sound at all times. 14 A central issue in the liability proceedings concerned the location of a garden bed at the Waverley Drive site of Star Track Express ('STE'), which was what necessitated a driver exiting the depot by the southern gate to perform the reverse jack-knife manoeuvre. It was in Mr Norman's performance of this manoeuvre, that Mr Lloyd was fatally injured. Mr Peters explained that prior to the incident he had attended the Waverley Drive site and had formed the following opinion regarding the garden bed: I also observed that the garden bed at the gate, the southern gate in this case, was going to be a hindrance for the truck driver to exit through that southern gate. I requested Star Track Express remove the garden bed for the smooth operation of the drivers exiting the southern gate. However, I recall their explanation was that the garden bed was part of the development and that it would not be removed. I considered the garden bed to pose a negligible risk to safety as a garden bed in that location creates a hindrance to the exiting of a truck through the southern gate. Had I considered it a safety issue for users of the depot, I would have insisted that it be removed immediately or remedied in some way. Our customers as a rule are very open to suggestions which we make in relation to driver safety and education. 15 As for the changes made following the incident, Mr Peters explained that within weeks of the incident occurring, STE had closed the Waverley Drive depot and transferred their operations to a new depot at Industrial Road, Unanderra: ... which is a much larger, far more open facility which permits easier and smoother manouverability [sic] on site, and which does not have the physical restrictions of the trucks exiting the southern gate at Waverley Road depot. 16 Accordingly, although the defendant's employees continue to provide line haul services to STE at the new depot at Industrial Road, the drivers are no longer exposed to the specific risk that was found to have occurred, that is, the risk of an employee of the defendant being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. However, it is important to note that the defendant's employees are still exposed to the more general risk of being struck by a reversing trailer with a prime mover attached. I will return to the significance of this later. 17 Mr Peters explained the policies and procedures at the new depot: At the new depot, I was told that a policy was put in place by Star Track Express that trucks were to reverse after blowing their horn twice and after physically checking behind the truck before reversing (as is stated in each edition of Western Freight Management's Driver's Manual). Annexed hereto and marked with the letter "M" is a copy of Western Freight Management's policy in relation to reversing. At no stage did a WorkCover Inspector issue an Improvement Notice in relation to the incident or in relation to any of Western Freight Management's reversing procedures as set out in its Driver's Manual, and that policy is still followed. Since the incident the procedure in the Driver's Manual has been emphasised in training to Western Freight Management's drivers, including the necessity to get out and check behind the truck, not to rely merely on assistants or spotters to guide a driver. It has been brought to the drivers attention, as has the incident, to illustrate the need to check behind the truck prior to reversing. At the new site, there were policies and procedures put into place in relation to traffic management, pedestrian movements and restrictions on pedestrian, car and truck movements, as well as sealing procedures which were given to me when I went to inspect the new depot, which I assessed and determined to be satisfactory. I gave copies of the policies and procedures to Mr Schmidt and told him to ensure that each driver that would attend that site must have a copy of the policies and procedures, and this was done. In my experience, in most depots I have been to, noise considerations make it impractical to use air horns as part of a signalling system when reversing a truck (annexed was a copy of the Protection of the Environment Operations (Noise Control) Regulation 2008). 18 Relevantly, regulation 13 of the Protection of the Environment Operations (Noise Control) Regulation 2008 provided that: A person must not cause a motor vehicle to be used in a place (other than on a road or road related area) in such a manner that it emits offensive noise. Maximum penalty: 100 penalty units in the case of a corporation, 50 penalty units in the case of an individual. 19 Mr Peters also attached the company manual of STE and their policies and procedures, including the operations procedure applicable to the 'Wollongong Branch'. The manual contained the procedures for unloading and loading pantechnicons and tautliners, whilst a document entitled 'Wollongong Operations Procedure 0003' dealt with the trailer docking and pick-up procedure. Relevantly that procedure provided: TRAILER DOCKING: 1. On entering the facility drivers are to slowly proceed to the receiving dock carefully looking for pedestrians or forklifts in the area. Should pedestrians or forklifts be in the area then the driver is to stop and wait until the area is clear before proceeding. (see fig. 1) 2. Manoeuvre then reverse trailer towards dock. Stop if anyone enters the docking area. 3. Reverse to and stop at the blue safety line marked on the hardstand. (see fig. 2) 4. Engage prime mover hand-brake and trailer maxi-brake. 5. Exit the prime mover, maintaining 3 points of contact. High visibility clothing and enclosed shoes are required at all Star Track Express workplaces. ... PICKING UP TRAILER FROM DOCK: HIGH RISK ACTIVITY - ENSURE NO ONE IS IN TRAILER! 1. Operations Supervisor verifies all personnel and equipment have exited the trailer and the dock leveller is disengaged. Operations Supervisor will place a "Do Not Enter" sign on the dock at the entrance to the trailer to indicate 'no entry' for depot personnel. 2. Operations Supervisor will notify the driver that the trailer is safe to pick up. 3. Drive to dock. Do not begin reversing until the area is clear of pedestrians, forklifts etc. 4. Reverse to the trailer and await the visual direction signal from the Operations Supervisor before connecting to the trailer. 5. Do not connect to the trailer until you have the visual OK from the Operations Supervisor. 6. Connect to the trailer. Where possible, connect the air and power hoses before driving the trailer off the dock. Do a tug test to ensure trailer is properly connected. 7. Once connected the driver will wait in the cabin. The driver is not to remove the trailer from the dock until the Operations Supervisor gives visual direction to proceed. 20 A traffic flow diagram set out the path that fleet vehicles were required to follow in the depot, and included a location for 'pedestrian crossing'. Also included was a Risk Assessment for the 'Wollongong Branch'. It was in the form of a risk matrix table identifying how severely someone could get hurt. Amongst other risks, the risk assessment dealt with line haul access and egress arrangements. 21 Finally, Mr Peters set out the defendant's current approach to safety, and the effect that the incident had on the defendant: I could not conceive how an incident of this type could have occurred, and I was left with a feeling of deep distress, as it was always my conviction that drivers knew not to locate themselves behind a trailer where they could not be seen. I regularly receive industry bulletins and subscribe to 'The OHS Legal Brief', which is a weekly update, in order to stay up to date with the latest safety innovations, and spends tens of thousands of dollars. Western Freight Management also spends millions of dollars purchasing the latest and safest trucks, or updating them with safety gear. I also am in touch on a regular basis, usually more than once a day, with the Managing Directors or other senior personnel from other transport companies, with mining customers and with other customers who have particular safety requirements, and so believe myself to be well informed as to current safety issues, and the means of implementing improvements and advances in safety. Annexed hereto and marked with the letter "R" is a list of publications and information services to which Western Freight Management subscribes. After this incident occurred, I met with representatives of Star Track Express at the Waverley Road depot, and am kept informed of Star Track Express's management, training and information sessions so far as they relate to work carried out by Western Freight Management to minimise the occurrence of preventable incidents happening. I also meet regularly with my management team to discuss safety issues, and we have a formal mechanism for drivers to bring issues of safety at all depots which Western Freight Management drivers go to so that they can be dealt with on a timely basis. We have incurred significant expenditure to try to make our drivers aware of safety issues, and of proper and practical procedures in all of the circumstances in which they find themselves. For this reason the Driver's Manual deals with the varied situations rather than site specific matters. The incident involving Brian has caused Western Freight Management to review its documentation and inspection processes, to help avoid an incident of this nature occurring again. Western Freight Management is and has always been committed to providing a reliable service to its clients which is safe to its drivers and the public. It has taken steps to ensure that the risk of recurrence of an incident of this nature, which was in my view in any event unusual and unexpected, is as far as is possible eliminated. 22 The prosecutor did not tender any evidence. Mr M Cahill of counsel, for the prosecutor, advised that the defendant did not have any previous convictions under the Act. Accordingly, the available maximum penalty is $550,000. Sentencing principles 23 In determining sentence, I adopt the approach set out in Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 at [30] - [34]: [30] Counsel for both the prosecutor and the defendant made submissions regarding the proper approach to sentencing. There was no disagreement about this. As the prosecutor submitted, the correct approach is that discussed in Markarian v R (2005) 215 ALR 213, which requires the Court to adopt "the instinctive synthesis" approach to sentencing. Further, that in applying this approach the Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (see Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117) and in particular: · Section 3A with respect to the "purposes of sentencing". · Section 21A regarding the "aggravating, mitigating and other factors in sentencing". · Section 22, which provides that a guilty plea is to be taken into account on sentence, including when the plea was effectively indicated or entered. [31] The prosecutor referred to the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Limited (No 2) (2001) 109 IR 347 as representing the proper approach to sentencing for offences under the 1983 Act. After referring to WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 at [21]-[27], WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 at [42] and Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [82], his Honour stated at [19]: In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act , namely, the establishment of safe standards and the protection of the workforce. [32] I respectfully agree with his Honour and consider the same approach is to be adopted under the 2000 Act. Further, as the prosecutor also submitted, neither the principles discussed in Markarian nor the provisions of the Crimes (Sentencing Procedure) Act require a departure from the general jurisprudence of this Court with respect to sentencing offenders for breaches of the Occupational Health and Safety Act . As it was stated in R v Way (2004) 60 NSWLR 168 at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A (1) (c). [33] The prosecutor also observed, and it is an observation with which I agree, that there is no standard discount figure that is to be applied with respect to subjective factors and that R v Thompson; R v Houlton (2000) 49 NSWLR 383 does not require otherwise. The subjective factors in each case must be weighed in the particular context and circumstance of each case, individually. [34] Both Mr Crawshaw SC for the prosecutor and Mr Kite SC for the defendant relied on the approach in two decisions ( Inspector Legge v Intercast & Forge Pty Limited [2006] NSWIRComm 182 and Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138) where I had identified those 'core matters' to which the Court should have regard in sentencing proceedings in this jurisdiction. In the former decision I stated at [26]: [26] The core matters are as follows: (1) The maximum penalty for the offence: Careful attention should be given to the maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: See Markarian v R (2005) 215 ALR 213 at [31]. (2) An analysis of the offending conduct with a view to determining the nature and quality of the offence: See Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 475. This would involve an assessment of the seriousness of the breach. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. (3) An identification of the risk and the degree of foreseeability of the risk. This is a significant factor to be taken into account when assessing the level of culpability of the defendant: See Capral Aluminium Limited at [81], confirming the approach taken by Walton J, Vice President, in Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 at 27. (4) Whether there were simple and straightforward remedial steps that were available, which could have avoided the accident. The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence: See Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 at 27; WorkCover Authority of NSW (Inspector Glass) v ACI Operations Pty Limited [1994] NSWIRComm 11; Inspector Elizabeth Benbow v Planada Holdings Pty Limited [2001] NSWIRComm 275. (5) The need for general and specific deterrence: See Capral Aluminium at [71] to [80]. (6) Subjective considerations including such matters as a plea of guilty entered by the defendant, remorse, contrition, whether there are prior offences, cooperation with the investigating authority, measures taken by the defendant to prevent a re-occurrence of the breach, and assistance provided to any worker injured as a consequence of the breach: See Lawrenson Diecasting at 475. CONSIDERATION Offending conduct 24 The defendant has been found guilty of failing to ensure the health, safety and welfare of Mr Lloyd whilst he was at work on 4 December 2004 at the Waverley Drive depot. As a consequence of that failure, Mr Lloyd sustained fatal crush injuries and Mr Norman required counselling over the traumatic incident. 25 The defendant's failure to ensure the safety of employees was due to three causes: · a failure to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises; · a failure to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises; · a failure to ensure there was sufficient room available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 26 In order to assess the objective seriousness of the offence it is necessary to have regard to a number of findings made in the liability judgment. First, the Court found that prior to the incident the defendant knew of the risk that a reversing prime mover, with a trailer attached, created. Specifically, the Court found that the defendant knew that: · a driver of a prime mover with a trailer attached, was unable to see the area immediately behind their trailer; · there was a risk that someone could be struck or injured if they stood behind a reversing trailer (see [66] and [67]); · the risk of being struck by a reversing trailer was an obvious and well known risk within the industry. 27 Secondly, the Court found that there was no formal traffic and pedestrian management plan at the Waverley Drive depot and that the defendant had failed to take steps to ensure that there was a safe traffic and pedestrian management system in place. The Court summarised the position adopted by the defendant in respect of traffic and pedestrian management at [91] of the liability judgment: (i) to a large degree WFM left the provision and/or maintenance of a safe system in relation to traffic and pedestrian management at Waverley Drive depot to STE; (ii) WFM took no or no adequate steps to satisfy itself that STE provided and/or maintained a safe system. WFM did not inquire as to what STE policies and procedures were in place at the depot, whether there existed a traffic and pedestrian management policy, whether such policies and procedures adequately ensured employees' safety, whether there were any additional safety measures required or, importantly, whether WFM's employees knew of, understood and applied those safety procedures; (iii) STE did not itself provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive; (iv) WFM left the question of safety largely in the hands of its drivers; and (v) WFM failed to provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive. 28 In respect of the failure to conduct a risk assessment the Court found at [101]: I earlier found that the defendant was aware of the general risk posed by a reversing prime mover with trailer attached; it admitted as much. What the defendant did not do was conduct an assessment of the risk in order to determine how to address the risk and, therefore, eliminate it or at least minimise the prospect of employees being exposed to the risk as it existed at the Waverley Drive depot. The defendant knew of the location of the garden bed, knew of the reversing manoeuvre that was consequently required to be performed in a confined space and yet did not turn its mind to how those elements could affect its employees' safety. 29 At [104] the Court found beyond reasonable doubt that had a proper risk assessment been conducted, the defendant would not have failed to take the necessary steps to avoid the risk revealed by the assessment. The evidence established that if a risk to safety was brought to the defendant's attention, it would have taken steps to guard against the risk. 30 In respect of the third particular made out, the failure to ensure sufficient room, the Court said at [118]-[120]: [118] In relation to the garden bed, the evidence showed that the Managing Director of WFM knew of the location of the garden bed, and the manoeuvre that was required by a driver to avoid the garden bed when exiting the southern gate. Mr Peters had noticed and raised the problem with STE executives prior to the opening of the depot that the garden bed was 'in the way and should be moved'. It is apparent, however, that Mr Peters and the defendant did not consider the location of the garden to be a safety problem. I have already addressed the failure to conduct a risk assessment in the context of traffic and pedestrian management and reversing trailers. But I again state that a proper risk assessment of the Waverley Drive depot would have revealed that due to the location of the garden bed it contributed to the creation of a risk to drivers. [119] In his evidence, Mr Peters acknowledged the general risk of a reversing trailer where the driver had restricted rear vision. Mr Peters agreed that, where appropriate, it was best to limit the number of reversing procedures required to be performed by a driver, although he maintained that reversing could never be totally eliminated as drivers were required to reverse onto loading docks. On 2 December 2004, Mr Norman performed two reversing manoeuvres. The first was when he arrived at the depot and reversed the trailer onto the ramp adjoining the loading dock and the second when he performed the reversing jackknife manoeuvre when he departed the depot via the southern gate. It was the location of the garden bed that necessitated the need for Mr Norman to perform the reverse jackknife manoeuvre that contributed to the risk to Mr Lloyd. The location of the garden bed did not physically prevent prime movers and trailers from exiting the premises through the southern gate, but the reverse jackknife manoeuvre required to be performed gave rise to a risk to Mr Lloyd's safety and was, therefore, unsafe. Having identified the risk that a reversing vehicle created, the defendant should have ensured that either there was sufficient room to safely exit via the southern gate without the need to first reverse or, if this was unachievable, ensured that the reversing manoeuvre could be carried out safely without placing any person at risk. [120] As to WFM's ability to have the garden bed removed, I acknowledge the steps taken by Mr Peters prior to the opening of the depot, but on the evidence it does not seem that the matter was pursued any further and, in fact, the defendant appeared to accept that the garden bed would not or could not be moved. By failing to take positive steps to address the risk the bed created, and to ensure that drivers had sufficient space to safely exit the depot, WFM failed to fulfil its statutory duty. 31 It is clear that the defendant's approach to ensuring its drivers' safety prior to the incident was largely left to the drivers themselves and to the defendant's clients, in this case, Star Track Express. This is of itself a concern when one considers the obligation on the defendant under s 8(1) of the Act for ensuring its employees' safety. I appreciate that the defendant does, indeed, operate in an industry where its drivers are often isolated, or under the control of third parties. However, just as labour hire employers have an obligation to ensure their employees' safety whilst their employees are under the control of others, so too does the defendant. There was a responsibility, therefore, on the defendant to ensure that on 4 December 2004, Mr Lloyd was not exposed to risks. 32 The true gravamen of the offence is made clear by the fact that despite the defendant's knowledge of the risk of a reversing trailer, and its system of placing responsibility on its drivers and customers to guard against that risk, the defendant failed to assess whether its employee's health and safety was, in fact, actually being ensured. That is, the defendant failed to assess, through means of an adequate risk assessment, the risk that a reversing trailer created for its employees, in light of the particular circumstances at the Waverley Drive depot. Instead, the defendant assumed that its drivers knew not to stand behind a reversing trailer, and assumed that there were adequate safety policies and procedures put in place by Star Track Express, to guard against the risk of a reversing trailer. This failure gave rise to Mr Lloyd being exposed to a risk, which could have been completely eliminated if the defendant had conducted a risk assessment. The evidence revealed that if the defendant had become aware of the specific risk to its employees' safety, it would have taken proactive steps to guard against that risk. 33 I am satisfied that the offence is objectively serious. The defendant knew of the risk of a reversing prime mover with a trailer attached, and yet it did not consider or assess that risk in light of the particular circumstances at the Waverley Drive depot. Instead, the defendant relied on its employees to remove themselves or not place themselves at risk, and relied on its customers to have policies and procedures to guard against the risk. Significantly, however, the defendant took no steps to ensure that either its employees did, in fact, know of the risk and how to avoid it, or that the customer, in this instance Star Track Express, did, indeed, have adequate safety policies in place. Nor did the defendant determine or satisfy itself that the customer's policies and procedures were being followed. The damage or injury caused by the breach 34 In respect of the damage or injury caused by the breach, I repeat what was said by the Court in Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201 at [35]: [35] Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales [2002] NSWIRComm 71; (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 1123; (2000) 95 IR 383 at 428 and Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. 35 Mr Lloyd was struck by a prime mover with a trailer attached as it reversed back towards the loading dock. He sustained fatal crush injuries. 36 From the evidence given in the liability proceedings, it is apparent that any reversing truck, let alone a large prime mover, has the potential to inflict serious injury on a person standing behind it. Further, given the size of a prime mover with a trailer attached, no matter what speed it is travelling it has the potential to inflict serious or fatal injuries on someone standing behind it. I note the evidence of Mr Schmidt given in the substantive proceedings: Q. When this incident occurred, were you aware of any other incident in your long experience in the transport industry of a driver standing behind a reversing truck? A. Not while it is no, no, because it is an unwritten law in the transport industry that nobody goes behind a reversing trailer whether you are in a forklift, 3 tonne truck or pedestrian. It is just not done. Nobody does it, except one. Q. Why is that? A. Because of the dangers of going behind a reversing trailer of the vision a driver may have from the front because you are looking at a 45 foot long trailer, another 16 to 20 foot prime mover and your clearance yea big and to try and look behind you and that is why you would see if you drive down the highway and see some signs on a semi trailer if you can't see my mirrors I can't see you, that is the reason because if you get behind them, you cannot see them. 37 I am satisfied that the death of Mr Lloyd is a manifestation of the seriousness of the risk, and will have regard to it as a factor in determining the objective seriousness of the offence. Risk and degree of foreseeability of the risk 38 In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476, the Court said: It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that "a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences". 39 In this case the risk to safety arising from a reversing trailer was not only obvious and foreseeable, it was in fact foreseen and known by the defendant prior to the incident. The prosecutor contended that the fact that the risk was obvious and known was an aggravating factor in the objective seriousness. 40 In WorkCover Authority (NSW) (Inspector Maddaford) v Coleman [2004] NSWIRComm 317; 138 IR 21 the Court dealt with a risk that was not only foreseeable, but foreseen by the defendant. The Full Bench said at [89] - [90]: [89] In the present case, the risk that an employee may be subjected to violence or bullying in the flimsy guise of a workplace "initiation" was not only foreseeable, but was foreseen (at least by Graham Coleman). In WorkCover Authority (NSW) v McDonald's Australia Ltd (2003) 125 IR 270, the Court addressed the issue of risks that are not only foreseeable, but are foreseen: "It is well settled that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature (see Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610, 99 IR 29). The fact that the risk to safety as particularised in a given prosecution has actually been foreseen by a defendant will, in my view, have the effect of further aggravating the nature and seriousness of an offence under the Act. This observation must, of course, be tempered by a recognition of all the circumstances of the particular case." [90] We note also the decision in Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357, in which the Court of Criminal Appeal was required to determine whether a fine imposed under the Environmental Offences and Penalties Act 1989 (NSW) was too severe. Badgery-Parker J, with whom Finlay J agreed, held that pollution occurring as the unforeseen consequence of the defendant's conduct, even though such a consequence may be foreseeable, involves a lesser level of criminality. In our view, the corollary must also be true, that is, that conduct which has a foreseen consequence involves a higher level of criminality or culpability. 41 In WorkCover Authority of New South Wales (Inspector Glass) v Qantas Airways Limited [2002] NSWIRComm 258; 119 IR 8, Staunton J said at [24] - [26]: [24] The prosecution relied on this identified foreseeability of risk, submitting that the defendant's culpability increased because of that prior knowledge. In doing so, he relied on the decision of a Full Bench of this Commission in Capral Aluminium Limited v WorkCover Authority (NSW) (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at 62 where the Court stated: "The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature." [25] The prosecution further relied on additional decisions of this Commission reinforcing that view as expressed in Capral, citing WorkCover Authority (NSW) v Warman International Ltd (2001) 105 IR 236 at 253 and Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. The prosecution also referred to a passage in WorkCover Authority of NSW v Goodman Fielder Mills Ltd (unreported, Marks J, 13 November 1994) and in particular the following passage from his Honour's judgment: "Once senior management became aware of the problem or once circumstances existed which should have resulted in management appreciating that there was a problem, the degree of culpability of the defendant increases accordingly." [26] In my view the objective seriousness of this matter is exacerbated by the high and precise degree of foreseeability of harm identified by the defendant in the operation of the Nobby as well as the failure by the defendant to maintain the safety controls it had already identified and insisted upon. 42 In Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [369] the Court said: [369] In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred. 43 The defendant conceded that it appreciated that there was a real risk of an employee being struck by a reversing trailer should an incident occur such as the one that is the subject of these proceedings. It was the defendant's submission, however, that it did not perceive there to be a real risk that an incident would occur. In other words, that although the risk was very real and very serious, the potential for such a risk to occur was not high. Furthermore, that there were a number of other risks within the industry, which were potentially more likely to occur than the risk of being struck by a reversing trailer, and the risk should be considered in that light. 44 I am unable to accept these submissions. Whilst the defendant may have believed that a manifestation of the risk, that is, that someone could actually be struck by a reversing trailer, was not high, it is clear that the potential for the risk to occur was high, irrespective of whether any injury was sustained. This is especially so given the number of reverse manoeuvres required to be performed, the absence of any pedestrian or traffic management policy or procedure and the system of work employed at the depot. I repeat what was said in the liability judgment at [70]: Mr Lloyd was, therefore, required to be at the depot, in the vicinity of the loading docks; he was waiting for his own trailer to be completed and was last seen at the rear of Mr Norman's trailer. Mr Norman's rear vision was restricted and, as he reversed the trailer towards the loading dock, Mr Lloyd was at risk of being struck by the rear of Mr Norman's trailer. On 2 December 2004, I find that there was a risk to the health and safety of Mr Lloyd whilst he was at work. 45 This risk had the potential to arise each day that Mr Lloyd and Mr Norman attended the depot. The fact that no such incident had occurred prior to 4 December 2004, does not mean that the risk did not arise. I am satisfied that the risk was high, and that the risk was foreseen and known by the defendant. Remedial steps 46 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; WorkCover Authority (NSW) v ACI Operations Pty Ltd (Industrial Court of New South Wales, Schmidt J, 25 February 1994, unreported); Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. 47 At [135] - [150] of the liability judgment, the Court addressed the steps that were available to avoid the risk. For example, the judgment identified the following measures: · A proper traffic and pedestrian management plan provided and maintained by the defendant. Within the plan the defendant could have ensured that reversing procedures were kept to the absolute minimum, and that any unnecessary reversing manoeuvres eliminated. · Where it was necessary for drivers to reverse, steps could have been taken to ensure that there were no pedestrians in the vicinity of the rear of the reversing trailer. · A policy that the trailer on the most northern of the southern loading docks had to depart first. This would have resulted in Mr Lloyd's trailer being loaded and completed first, and depending on other traffic in the yard would have decreased the possibility of Mr Norman having to exit via the southern gate. · A spotter standing on the loading dock. When the driver was ready to depart the driver would sound the horn once or twice, and wait for a signal from the spotter. The spotter would check that it was safe for the driver to reverse, give the relevant hand signal and the driver would then reverse. 48 The Court found that there were simple remedial steps available to be implemented prior to the incident. Deterrence 49 General and specific deterrence are matters to be taken into account in sentencing under the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; 49 NSWLR 610 at [71] - [80]; Cahill v DOCS (No 4) at [43]. The prosecutor contended that the defendant remained a significant employer operating in the heavy transport industry and that it has been tardy in responding to the failings in its systems associated with the subject incident and identified by the Court. In those circumstances, it was submitted, any penalty imposed should reflect significant elements of both general and specific deterrence. 50 In respect of general deterrence, the transport industry is an industry where employees are often outside the direct control of the employer, for example, on roads and at client depots. Ensuring that employees are not exposed to risks requires diligence of a high order. 51 The reliance on an 'unwritten law' that a truck driver must not walk behind a reversing trailer is somewhat concerning. It carries within it the notion that the 'law' is so well known amongst drivers that no steps need to be taken by the employer to ensure the 'law' is adhered to. In this case, the defendant knew of the unwritten law, but did not turn its mind to the risk to safety that it created and, in turn, did not address the risk. I consider it appropriate to bring the risk and the need to take adequate pro-active steps to guard against the risk, to the attention of other employers operating in the transport industry. I therefore propose to adopt a significant element of general deterrence in the penalty imposed. 52 In respect of specific deterrence, the defendant conceded that it continued to place responsibility on its drivers and clients to ensure its employees' safety. Of itself that cannot be criticised. However, in so far as the defendant was concerned, who had the primary responsibility for ensuring safety, the evidence revealed that the steps taken by the defendant following the incident were inadequate in guarding against the risk of a reversing trailer. In particular, the defendant has not implemented an adequate risk assessment in order to assess whether its drivers' safety is actually being ensured at client depots. 53 I accept that the defendant has demonstrated a positive attitude to occupational health and safety, evidenced by its driver training, tracking system and extensive policies in the area of fatigue management and drugs and alcohol. However, I am not satisfied that there is a low or non-existent chance of the defendant re-offending, particularly in light of its failure to adopt appropriate remedial measures to guard against the risk of a reversing trailer. I, therefore, propose to adopt a significant element of specific deterrence in the penalty imposed. SUBJECTIVE FACTORS Steps taken after the incident 54 The steps taken by a defendant following an incident to avoid a re-occurrence can be a factor in mitigation: WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; 105 IR 236. However, in this matter, I consider that the steps taken by the defendant were not all that were reasonably available and practicable. 55 At the outset, I note that STE now operates out of a new depot at Industrial Road, and that the specific risk created by the location of the garden bed at Waverley Drive and the reverse jack-knife manoeuvre no longer arises. I am left with the impression that the defendant now takes the view that the risk has been reduced or even eliminated by virtue of the move to the new depot, and that this has reduced the necessity for remedial steps to be taken. I accept that the specific circumstances are no longer in existence, and that the drivers are no longer required to perform the reverse jack-knife manoeuvre, but there remains the general, known risk of a reversing trailer and it continues to be a requirement for trailers to be reversed at the new depot. 56 The evidence revealed that since the incident, the defendant's reversing policy had been updated and requires drivers to keep reversing to an absolute minimum and to consider whether it is really necessary for them to reverse. The defendant advised that it had emphasised the contents of the company's manual to its drivers, including the reversing procedure, and had informed its employees about the incident at Waverley Drive. In respect of the new Industrial Road depot, Mr Peters advised that he assessed STE's policies and procedures for that depot to be satisfactory and requested Mr Schmidt to distribute the policies and procedures to all drivers who attend that site. Mr Peters said that this was done. 57 However, the defendant has not taken all available and reasonably practicable steps to guard against the risk. The defendant has not implemented the 'unwritten law', that is, that no drivers are to stand behind a reversing trailer, by including it in the company manual. Further, there is no evidence that the defendant has conducted an adequate risk assessment at the new depot, or adequately assessed the safety policies and procedures in place at that depot, and the defendant has not implemented the use of horns or spotters or similar safety measures. 58 The prosecutor submitted that the updated reversing policy in the manual still did not contain any reference to what is known as the 'unwritten law'. I accept that the updated reversing provision in the manual (extracted earlier in this judgment), makes no reference to drivers being forbidden or prohibited from standing behind a reversing trailer. Whilst a 'paper system' of prohibiting drivers from standing to the rear of a reversing trailer would not be sufficient, of itself, to prevent the relevant risk from arising, it is an important and simple step, that combined with other measures, could reduce, the risk arising. It would ensure that every driver was, in fact, aware of the risk of a reversing trailer and knew of the 'unwritten law' that they should not stand behind the trailer. 59 The procedure for reversing was also updated in the manual to include a requirement that reversing be kept to an 'absolute minimum', but the company procedure for reversing makes no reference to the use of spotters or horns. The defendant submitted that it was not practicable to implement either measures within the company manual. The defendant contended that the noise regulations, in particular, the Protection of the Environment Operations (Noise Control) Regulation 2008 were an impediment to utilising horns as a signalling method for reversing. The defendant also submitted that the use of a spotter, as a company policy, would be impractical, as drivers were required to attend sites with and without the availability of spotters, and that the spotters would not be under the control of the defendant, but more likely would be employed by the defendant's customer. Moreover, Mr G Hatcher of senior counsel for the defendant submitted the spotters could be distracted in their task of ensuring the area behind a trailer was clear prior to a driver reversing. 60 I acknowledge Mr Peter's concern that noise regulations may impact on the use of horns as a signalling system, but there is no evidence before the Court that the noise regulations in fact do prevent the use of horns as a signalling method. There is no evidence of any analysis or research conducted by the defendant, as to whether horn signals could be used, whether there are other means for signalling, for example, hand signalling, or whether there are alternative measures to ensure that a driver cannot reverse until the area behind their trailer is completely clear. 61 As for the use of spotters, I appreciate that the defendant must have a policy and procedure in place that is capable of being adopted by all drivers at all sites that they attend. However, there was evidence in the liability proceedings that there were a number of site specific procedures for different client depots, annexed to the company manual. Given the frequency that the defendant's drivers attended the Waverley Drive depot, and as I understand it now the Industrial Road depot, an option could be to have a site specific procedure for the Industrial Road depot attached to the company manual. It is there (and perhaps in other locations) that the company could require that spotters be utilised in order to ensure that the area behind a trailer is clear, prior to the driver reversing. The defendant could ensure that STE had spotters available at the site and that those spotters performed the task as required. If spotters were not available at the depot the driver could be instructed not to undertake any reversing manoeuvre until a spotter was made available. As for the submission that the spotters might become distracted, if such an event were to occur, then the driver would be instructed not to reverse until they had the undivided attention and permission of the spotter. 62 I am unable, therefore, to accept that it is not practicable for the defendant to adopt either the use of horns (or some other method of signalling) or spotters or both. I reiterate the findings in the liability judgment that these type of measures are available to be implemented and capable of reducing or eliminating the risk that a reversing trailer creates. I wish to say, however, that I am not imposing these measures on the defendant. It is a matter for the defendant to determine the best way to ensure safety at the various depots visited by its drivers. What I am saying is that in my view there were and are reasonably simple measures available to be implemented that will either eliminate or reduce the risk to safety in connection with reversing trailers and it seems to me horn signals and spotters are two of such measures. 63 It is a positive step that the defendant provided its drivers with STE's policies and procedures for the Wollongong Branch, as prior to the incident the defendant's drivers were not aware of any traffic and pedestrian management plan for the Waverley Drive depot, indeed the Court found there was none. The documents, prepared by STE, are indeed detailed policies concerned with traffic management flow plans, risk assessments and controls and procedures for loading and unloading trailers at the site. However, these policies were prepared by STE. The evidence before the Court, is that these were forwarded by the defendant, to its employees, without any apparent adequate assessment of the policies and procedures or a risk assessment being undertaken of the Industrial Road depot. 64 I accept that Mr Peters read the policies, and assessed them to be satisfactory. However, I consider this method to be inadequate. First, there was no evidence before the Court of who, in fact, received the policies and procedures, although I note that Mr Peters said the distribution to drivers took place. A better procedure would be the maintenance of a register of every driver who attends that site with a requirement that they sign the register to certify that they have read and understood the policies for the site. This would ensure that no driver was overlooked and that a record could be kept for ensuring that those drivers receive any updated policies and procedures for the site. 65 Secondly, and perhaps more significantly, Mr Peters stated that he assessed STE's policies and procedures and deemed them satisfactory. I accept that Mr Peters has been involved in the transport industry since he was 17 years old and has accumulated a great deal of knowledge, both from a driver and management perspective, regarding issues and risks faced by those working in the transport industry, 66 However, I am not satisfied that this single assessment is adequate. First, there was no evidence to suggest that Mr Peters, although having a great deal of industry experience, has the necessary qualifications to appropriately assess the policies and procedures put in place by STE, for the purpose of assessing risk. The liability judgment established that Mr Peters knew, prior to the incident, that the location of the garden bed necessitated a driver exiting the southern depot to perform the reverse manoeuvre. He conceded that, because of the risk of a reversing trailer that, where possible, the number of reverse manoeuvres performed by a driver should be restricted. Yet, Mr Peters did not consider the garden bed to be a risk to safety, although it is clear that if he had thought it was a matter affecting safety he would have done something about it. Unfortunately, his assessment was flawed. In that light, and given the findings in the liability judgment concerning risk assessments, the defendant should have taken steps to ensure an adequate system was in place for assessing the policies and procedures at client depots. 67 There is no evidence that the defendant conducted a risk assessment at the new depot, or an analysis as to whether STE's policies ensured the defendant's drivers' safety at the Industrial Road depot. Whilst the evidence revealed that STE had conducted risk assessments, the obligation is on the defendant to satisfy itself - especially when it directs its employees to follow those policies and procedures - that those policies and procedures do ensure the defendant's employees' health and safety. 68 The conducting of a formal and adequate risk assessment at the site, and an adequate analysis of STE's policies and procedures in the context of the site, is a relatively simple step, and one that would ensure that all risks are appropriately identified. The evidence from the liability proceedings revealed that had the defendant been aware of the risk that the garden bed created to its drivers' health and safety, the defendant would have acted to remedy the risk. 69 I find that the steps implemented by the defendant following the incident are of limited effectiveness in guarding against the serious risk of a reversing trailer and that the defendant should only receive a minimal benefit in mitigation from the steps it has taken. I also consider it to be a relevant factor regarding the defendant's remorse and contrition over the incident. Assistance to victim/family 70 The assistance provided to a victim or the victim's family following an incident, is a relevant factor in mitigation: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; 99 IR 159. In this matter, Mr Lloyd, sustained fatal injuries. Mr Peters arranged for Mr Lloyd's parents to fly from New Zealand and the defendant paid for the cost of the funeral. Approximately 15 management, drivers and administration staff of the defendant attended the funeral. Mr Schmidt, the defendant's Operations Manager, also assisted Mr Lloyd's parents clean out the mobile home that Mr Lloyd lived in at the defendant's Blacktown depot. 71 The defendant also provided counselling to Mr Norman, the other driver involved in the incident. The defendant's assistance to both Mr Norman and Mr Lloyd's family will be treated as a factor in mitigation. Contrition 72 A factor in mitigation can be the remorse or contrition of the defendant over the incident: Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16; 99 IR 137 at [64]. A corporation is able to demonstrate contrition: Ampol Ltd v Environment Protection Authority (Court of Criminal Appeal, 26 October 1995, unreported); WorkCover Authority of New South Wales (Inspector Belley) v Rail Infrastructure Corporation [2001] NSWIRComm 323; 111 IR 442 at [85]. The prosecutor contended, however, that there was no evidence to suggest that the defendant was entitled to any benefit of a discount for remorse and contrition. 73 The prosecutor submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provided that remorse may only be taken into account as a mitigating factor, if the following conditions are met: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), 74 Therefore, it was contended, in the absence of a specific acceptance of responsibility and an acknowledgement of the injury, loss and or damage caused, the defendant was not entitled to the benefit of a discount. The prosecutor further submitted that the defendant's approach, as revealed through Mr Peters' testimony and affidavit, was said to offend the Full Bench's observations in Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; 147 IR 117 at [118]. Relevantly, in that case the Court said: But we should make it clear that where a defendant has been found guilty of an offence under the Act yet declines to accept responsibility for the act or omission constituting the offence, especially where there has been serious injury or death, the Court will discount the value of any expression of contrition because we would regard it as a serious deficiency in the absence of any reasonable explanation. 75 In response to the prosecutor's submission, Mr Hatcher submitted the following: The other matter is a question of remorse or contrition. In Star Track's case there was a guilty plea; in this case there wasn't. But your Honour will have seen from the way in which the proceedings were conducted, there was no contest offered by our client on the facts or the incident. The Prosecutor wasn't put to proof. In fact, he was offered an agreed Statement of Facts which he wished to supplement with some further evidence. Our client's principal objection was on the application of the law to the facts. And your Honour, whilst that doesn't entitle our client to the benefit of an early guilty plea, it does indicate in our submission, that our client is not contending that it was not responsible for what occurred. And so it is entitled to considerations of contrition and remorse. It never had said anything other than it is responsible. What it said is, it wasn't legally responsible under this legislation, as to which the court found it was wrong 76 The authorities establish that remorse and contrition can be demonstrated, particularly in the case of a corporation, by a variety, or combination, of factors. This can include, although not be limited to: the defendant entering a guilty plea (WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 at [29]); the assistance provided to the victim or the victim's family (WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 at [35]); and an express statement of remorse or contrition by someone duly authorised to make such a statement on behalf of a defendant, although any statement must be assessed in light of the defendant's conduct (WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 at [39]). 77 In this case the defendant did not enter a guilty plea, and instead chose to defend the charge, for which it was ultimately found guilty. Although the defendant will not be penalised for choosing to defend the charge, conversely it cannot be said to have demonstrated contrition through the entry of a guilty plea: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [22]. 78 Secondly, I accept that the defendant provided assistance to Mr Lloyd's family and co-operated with WorkCover, which can be considered as a factor demonstrating its contrition and remorse. 79 However, the conduct of the defendant, both in the steps it has taken after the incident, the views expressed through Mr Peters and counsel for the defendant, and an absence of an affirmative statement accepting culpability, leads me to conclude that any reduction in penalty for contrition and remorse should be minimal. 80 The views expressed by Mr Peters, and the defendant in submissions, suggests a reluctance by the defendant to accept culpability over the incident. In that regard, I refer to what Mr Peters said in his affidavit: I could not conceive how an incident of this type could have occurred, and I was left with a feeling of deep distress, as it was always my conviction that drivers knew not to locate themselves behind a trailer where they could not be seen . ... The incident involving Brian has caused Western Freight Management to review its documentation and inspection processes, to help avoid an incident of this nature occurring again. Western Freight Management is and has always been committed to providing a reliable service to its clients which is safe to its drivers and the public. It has taken steps to ensure that the risk of recurrence of an incident of this nature, which was in my view in any event unusual and unexpected , is as far as is possible eliminated. (emphasis added) 81 I also note the following submission of Mr Hatcher, for the defendant: When our client, prior to this incident, looked at the risks, our client assessed the risks as being best overcome by insisting on the driver taking full responsibility and by walking around the truck before he reversed, to ensure that no-one is there. It cannot be said our client didn't acknowledge the risk. Your Honour found, and I thought our client candidly conceded, that it saw there was a risk. Where it failed was in its assessment of what should be done. It failed because of our client's understanding of the potential for humans to avoid clear and obvious danger . The driver was the one most alive to the risk of a reversing trailer and the case concerned the risk to a driver, not to pedestrians generally. (emphasis added) 82 This submission is inconsistent with the findings made in the liability judgment at [138] - [140]: [138] The defendant submitted, however, that as Mr Lloyd, a driver with extensive experience and training in the industry, knew that he was not to stand behind a reversing trailer, and yet he did so, no other steps, such as a policy excluding Mr Lloyd from the area, would have prevented Mr Lloyd from standing behind the reversing trailer and placing himself at risk. I do not agree with this submission. As I have already observed, it is clear from the authorities that the employer, in satisfying its duty to ensure health and safety of its employees, must take into account not only the careful and observant employee but also the careless, inattentive or inadvertent employee: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 at [45]. In other words, the obligation was on the defendant to devise a system of work in connection with the loading of the trailers at the depot that took into account the careless, inattentive or inadvertent employee. [139] Whilst it was maintained by Mr Schmidt and Mr Peters that Mr Lloyd knew not to stand behind a reversing trailer, it was reasonably foreseeable that a driver may inadvertently place, or find, himself in the dangerous position of being at the rear of a trailer as it reversed. There was no evidence as to why Mr Lloyd was behind the trailer, but the relevant issue was that he was there. I am satisfied that there may be circumstances where an employee, despite knowing of the 'unwritten rule', may find himself behind a reversing trailer. This could include, for example, someone who receives a phone call or is distracted for some reason, or who falls, becomes injured and is unable to move from the area. [140] The defendant's contention that nothing else could have been done approaches the issue too narrowly. The risk was that a reversing trailer could strike an employee and it is reasonably foreseeable that in the absence of a proper traffic or pedestrian management plan there may have been circumstances where an employee found themselves in the path of a reversing trailer unseen by the driver because of the driver's restricted vision. Focusing on why or whether employees willingly placed themselves in the situation is not relevant to the risk as charged. The risk was that an employee could have been in the area, and could have been struck by a reversing trailer. 83 In WorkCover Authority of New South Wales v Hitchcock, Walton J, Vice-President considered whether the defendant in that case was contrite or remorseful. At [39] - [41] his Honour said: [39] I accept Mr Moses's submissions from the bar table (which were not objected to by the prosecutor) to the effect that Mr Hitchcock was contrite for Mr Haynes's tragic death. However, I agree with the prosecutor that such an expression of contrition must be assessed in the light of Mr Hitchcock's conduct following the accident, which does not entirely sit comfortably with significant feelings of contrition or remorse. In particular, I repeat my earlier finding that there were no effective changes to the Company's practices or procedures, despite the fatal accident and despite the availability of simple and obvious remedial measures. [40] I also accept Mr Skinner's submission that the tenor of Mr Hitchcock's affidavit (replete with phrases such as "I always tried to run a professional law-abiding business"; "... it was my practice to inform drivers to stop and rest"; and "I have continued to reinforce to drivers the importance of managing fatigue"); suggests an impediment to full recognition of culpability. It is difficult, in these circumstances, to find any acknowledgment by Mr Hitchcock of having committed a wrong (without which there can be no remorse), let alone detect any serious purpose to amend his wrongdoing. Mr Hitchcock undoubtedly recognises that a tragedy has befallen Mr Haynes and Ms Campbell; that he and his business have suffered significant adverse consequences as a result; and he is undoubtedly sorry that this suffering has occurred. However, even with the eloquence of Mr Moses's submissions to enhance this aspect of Mr Hitchcock's contrition on sentence, there is a degree of reluctance in the contrition offered. [41] In conclusion, although I accept that there are subjective factors to take into account in mitigation, their effect on the penalties to be imposed will be minimal, given the great objective seriousness of the offences; the compelling need for general deterrence; the fact that subjective factors must be considered secondary to the objective seriousness of the offence (see the Full Bench decision in Maddaford v Coleman at [94]); and their limited nature in this case. 84 I am of the opinion that the evidence in this case demonstrates a reluctance by the defendant to accept culpability over the incident. Whilst I acknowledge Mr Hatcher's submission that the defendant's contention was not that it was not responsible for the incident, just that it was not legally responsible under the Act (although he accepted that the Court had found they were wrong in that view), I am unable to see sufficient indication of the defendant's contrition and remorse or its acceptance of culpability over the incident, that would justify reducing the penalty to any degree other than marginal. I found the 'tenor' of Mr Peters' affidavit, as demonstrated by the paragraphs extracted above, 'an impediment to full recognition of culpability': Hitchcock. Further, I earlier found the steps taken by the defendant after the incident were inadequate, even though there were simple and available measures that the defendant could have adopted. The defendant's failure to take adequate pro-active steps following the incident, is, demonstrative of its reluctance to accept full culpability. 85 As for the prosecutor's submission that the defendant's approach offends against what was said by the Court in Morrison v Powercoal (No 3), I note that I do not have a formal statement of contrition and remorse, other than the statement by Mr Hatcher from the bar table (and extracted above). I accept that Mr Peters stated that following the incident he was left in a state of deep distress, but this is not a sufficient indication of contrition or remorse such that it should have a marked effect on penalty. In my opinion, the issue in this case is not so much that the defendant has said it is contrite and remorseful, and yet has acted in a manner inconsistent with such a statement, but rather that it has neither made such a statement, nor acted in a manner to demonstrate its contrition and remorse other than the assistance it provided to the deceased's family and its cooperation with the investigating Authority. Other subjective factors 86 I accept that the defendant is of good industrial character and has no prior convictions under the Act. The prosecutor conceded that the defendant was entitled to 'lenience which is normally extended by the Courts to a first offender': s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. I will have regard to this in determining penalty. 87 It was common ground that the defendant co-operated with WorkCover in their investigation of the incident and will be taken into account: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at 106 - 107 and WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119. 88 The defendant did not enter a plea of guilty and, therefore, there can be no reduction in sentence arising from a guilty plea. Parity 89 Mr Hatcher submitted that the principle of parity (or perhaps more correctly, consistency) was relevant to the penalty imposed on the defendant. Star Track Express, who operated the Waverley Drive depot at the time of the incident, was also prosecuted over the incident and fined $150,000: see Inspector Patton v Star Track Express Pty Ltd [2007] NSWIRComm 192. 90 The principle of parity was discussed in Capral Aluminium at [62]-[65]: [62] It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 435-436: "Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v The Queen (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione (1997) 189 CLR 295 at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which `shows consistency and not disparity in punishment in the same way as discussed by Mason J in The Queen v Lowe (1984) 154 CLR 606]' where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ..." [63] When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said (at 371): "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." [64] In Channon v The Queen (1978) 33 FLR 433, Deane J observed: "In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances." [65] As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10. 91 In implementing the principles of parity and consistency in sentencing, it is relevant to consider the respective subjective factors. In Inspector Patton v Star Track Express, Star Track Express had entered an early guilty plea, for which Staff J found they were entitled to receive a 25 per cent reduction in penalty. Staff J also found at [38]: The defendant has closed the depot where the incident occurred and relocated to new premises. It has an impressive array of safety systems in place, which lead to a finding that the offender is unlikely to re-offend. The defendant accepted responsibility for the incident and the death of Mr Lloyd and has expressed its deepest remorse. This is a factor to be taken into account in its favour. I also take into account the defendant's contrition and strong commitment to occupational health and safety. 92 Significantly, in this matter the defendant did not enter a guilty plea, and accordingly cannot be entitled to any reduction in penalty arising from the utilitarian value of such a plea. Given my findings regarding the defendant's remorse and contrition, there is a significant difference in that regard to the finding of Staff J. Further, the steps taken by the defendant after the incident, when compared to the pro-active steps taken by Star Track Express that addressed the risk, reveals another substantial difference that counts against the penalty to be applied to the defendant being at or near the same level as that applied to Star Track Express. I do accept, however, that the defendant has demonstrated, through its extensive policies and procedures, including fatigue management and drug and alcohol policies, that it has a commitment to occupational health and safety and that will be taken into account in the defendant's favour. 93 In Inspector Patton v Star Track Express the defendant was charged with an offence under s 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge were that the defendant: 1. Failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 2. Failed to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to the line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 94 These particulars are similar to the first two particulars of the present charge. However, the third particular found proven in the present proceedings was that the defendant: 3. Failed to ensure that sufficient room was available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 95 In my opinion, the multiple failures to ensure safety of its employees means that the offence committed by the defendant was more objectively serious than the offence in Inspector Patton v Star Track Express. Moreover, in that case Staff J determined that although the penalty should include an element for specific deterrence it was 'not a case where there is any need for the penalty to be framed so as to require attention of the defendant to be drawn to the need to address safety issues.' In the present case, I have indicated that I was not satisfied that there is a low or non-existent chance of the defendant re-offending, particularly in light of its failure to adopt appropriate remedial measures and I intend to include a significant element in the penalty for specific deterrence. 96 In Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Dawson and Gaudron JJ said at 301-302 (omitting citation of authority): The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality… 97 My view is that the offence in this matter should attract a penalty of the order of $250,000. However, I can understand that might give rise to a justifiable sense of grievance on the part of the defendant in light of the penalty imposed on Star Track Express. PENALTY 98 Having regard to all of the objective and subjective considerations that are addressed in this judgment and the principles of parity and consistency, I consider that an appropriate penalty for the offence is $200,000. ORDERS 99 The Court makes the following orders: 1. The defendant is convicted of the offence. 2. The defendant is fined an amount of $200,000 with moiety to the prosecutor. 3. The defendant shall 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.