Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Stothard v Allied Industrial Services Pty Ltd [2011] NSWIRComm 21 Hearing dates: 15 February 2011 Decision date: 22 March 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC 393 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $130,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant - guilty plea - fatal injury to employee - variation made to work method not risk assessed - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general deterrence - company on record not operating - in circumstance no element of specific deterrence - remorse and contrition expressed very effectively with fund established for family - concrete expression of remorse an element in mitigation of penalty - evidence of ongoing corporate commitment to safe working - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A Occupational Health and Safety Act 2000 (NSW) s 8(1) Cases Cited: Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Glass v Foamex Polystrene Pty Ltd [2004] NSWIRComm 100 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited (unreported decision of Schmidt J dated 25 February 1994) Morgenthal v Houghton [2010] NSWIRComm 192 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Category: Principal judgment Parties: Inspector Stothard (Prosecutor) Allied Industrial Services Pty Ltd (Defendant) Representation: P E McDonald SC (Prosecutor) HJ Dixon SC with I Taylor of counsel (Defendant) WorkCover Authority of NSW (Prosecutor) Macpherson & Kelley Lawyers (Defendant) File Number(s): IRC393 of 2010 Judgment 1This prosecution is brought by Inspector Mark Stothard of the WorkCover Authority of New South Wales against Allied Industrial Services Pty Limited ("the defendant") under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order. 2It is alleged the defendant, on 22 May 2008, contravened s 8(1) of the Act in that it failed to: ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of its employees, and in particular, Setaleki Kolomaka, contrary to s 8(1) of the Occupational Health and Safety Act 2000 . In particular: (a) The health and safety of the defendant's employees, and in particular Setaleki Kolomaka, was put at risk of injury from being struck by a stream of high pressure water from a water jetting lance, whilst undertaking high pressure water jetting operations. The particulars of the acts or omissions of the defendant in failing to eliminate the risk are: (b) The defendant failed to provide and maintain a safe system of work with respect to the task of high pressure water jetting at the site in that it failed to undertake measures as follows: i. provide employees with a mechanical control appliance for the high pressure water jetting lance; ii. ensure that employees considered and calculated the reaction force on the high pressure water jetting lance prior to undertaking water jetting operations so as to ensure the applicable reaction forces did not exceed recommended levels for hand-held operations; iii. ensure that employees were provided with adequate personal protective equipment when conducting manual high pressure water jetting operations, and in particular, Kevlar body protective clothing; iv. ensure that the operator of the lance had direct control of the water flow so as to ensure that the water flow could stop immediately if the operator lost control of the lance. As a result of the defendant's failures and omissions its employees, and in particular, Setaleki Kolomaka, were placed at risk of injury. Further, and as a consequence of the failures set out above, Setaleki Kolomaka suffered fatal injuries. 3The defendant pleads guilty to the charge. 4Ms P E McDonald SC appeared for the prosecution and Mr H J Dixon SC with Mr I Taylor, of counsel, appeared for the defendant. The prosecution relied upon: amended Application for Order; Agreed Statement of Facts; Tender Bundle containing Factual Inspection Report of Inspector Mark Stothard, Follow Up Factual Inspection Report of Inspector Mark Stothard, Photographs taken by Inspector Ian Lancaster, Allied Safe Operating Procedures - High Pressure Water Jetting Units, Australian/New Zealand Standard 4233.1:199, WOMA "Round Jet Nozzle Form 4" chart and URACA Nozzle chart, Company search and a Victim Impact Statement prepared by the widow of the deceased. No Prior Conviction Record of the company was tendered as this incident was the first by the company. 5The defendant relied upon a Statement of Peter Nicholas who was employed by Veolia Environmental Services (Australia) Pty Ltd ("VES") as the General Manager - Hunter Region Commercial Services. A number of relevant documents were attached to the Statement including documents in relation to the investigation of the incident by VES and the upgrading of safety measures within the system of work now conducted by VES. 6The Agreed Statement of Facts relevantly reads: Allied Industrial Services Pty Ltd ("Allied") 3. On 14 March 1955 Allied became a registered company. Since 17 April 2008, the registered office of Allied has been located at Level 4, 65 Pirrama Road Pyrmont in the State of New South Wales. 4. Allied is a wholly owned subsidiary of Veolia Environmental Services (Australia) Pty Ltd ("Veolia"). Veolia acquired 100% of the shareholding of Allied on 4 April 2008. All employees remained employed by Allied at this time. 5. At all material times Allied was an employer conducting a business providing industrial cleaning services. BlueScope Steel (AIS) Pty Ltd ("BlueScope") 6. BlueScope owns and operates a range of steel and building solutions businesses. Bluescope operates the Port Kembla Steelworks, which is an integrated steelworks that produces a wide range of finished and semi-finished flat steel products. 7. Part of the premises at Port Kembla includes what is known as a Recycling Area (also known as the Alliance and Recycling Area and 21 Area). The Recycling Area is used for the storage, recycling and processing of by-products. 8. Truck wash stations and settlement tanks are located at the premises. The truck wash stations allow vehicles on site to comply with environmental legislation for the cleaning of vehicles prior to re-entering the external road system. 9. The No. 5 Truck Wash Station and Settlement Tanks within the Recycling Area is used to collect loose material picked up by heavy vehicles travelling along the internal road infrastructure. 10. Allied operated a site office, equipment yard and maintenance facilities at the Recycling Areas ("the Premises") Service Agreement 11. On 14 December 2007 Allied and BlueScope entered into an agreement (agreement number PKS 047) ("The Agreement") whereby Allied would provide plant and industrial cleaning services at Port Kembla Steelworks. Pursuant to Section B of the Agreement, Allied agreed to provide all industrial cleaning services of the nature expected by a major manufacturing facility engaged in the production of steel and manufactured steel products. This included high pressure water jetting of plant and equipment. 12. Under the Agreement Allied would, amongst other things, provide: a. materials, plant and equipment, b. suitably skilled labour to perform the work; c. processes and systems; d. preparation of job packs and Authority to Work Permits, where authorized to do so; and e. management of day to day operations for the services. 13. In accordance with the Agreement, planning requirements were required to be undertaken before the provision of any service. Under clause 10.1 of the Agreement, prior to providing any service, Allied was required to meet with the Bluescope supervisor to plan the service and: a. review and detail plan the order; b. determine the required labour; c. determine the required equipment; and d. inspect the job site as may be necessary in consultation with BlueScope. 14. In addition, prior to providing any service, Allied was to prepare and submit a work method statement to the Bluescope supervisor for approval. The work being performed 15. In April 2008 Richard Placek, the Alliances and Recycling Manager of BlueScope, determined that there would be a cleaning of the settlement tanks of the No. 5 Truck Wash Station ("the Site"). The supervision of this task was delegated to Jose Gonzalez, a BlueScope civil engineer (Team Leader/Plant Supervisor). It was anticipated that the work would be completed by the end of June 2008. 16. he work to be performed involved cleaning out sludge and sediment from within the settlement tanks using a high pressure water jetting system. A high pressure water jetting system is a water delivery system which consists of an energy source, pump, control mechanism, hoses, pipes, nozzles and various other attachments. 17. The high pressure water jetting equipment which was utilised at the site was owned and operated by Allied. The equipment comprised of: a. A WOMA 250 Z high-pressure water pump unit, which was fitted to an Isuzu truck (registration number YDT 793); b. 3 metre stainless rigid steel lance; c. High pressure hose A 189 and A 184; d. WOMA dead man foot pedal; e. TST Kevlar hose protector (from hose to rigid lance); f. Hose stockings (fitted from hose to pedal; pedal to hose and hose to rigid lance); and g. Whip check from pump to delivery hose. Events leading up to the Incident 18. On 13 May 2008 a pre-work site visit and inspection was conducted at the Site. The following people were present: a. Andrew Ray, Allied First Line Manager; b. Hristavil (Chris) Nikoloski, Allied Leading Hand Service Provider; c. Sean McCarthy, Allied First Line Manager; d. Jose Gonzalez, BlueScope Plant Supervisor/ Team Leader; and e. Benjamin Cerezo, BlueScope Waste Management Officer/Team Leader. 19. During the meeting, the scope of work and method of work to undertake the task was discussed. 20. Following the meeting and as part of the BlueScope occupational health and safety system, documentation known as a "work pack" was prepared by Allied. The pack included the following documents: a. Job Safety and Environmental Analysis worksheet; b. Work Quality Plan No.491286; c. Work Requisition Form; d. Toolbox Check Sheet; e. Safe Operation of High Pressure Water Jetting Units Procedures; f. Visual Inspection of Water Jetting Pressure Hoses; g. Safety Audit Checklist; h. Environmental Audit Checklist; and i. Manual Handling Audit Checklist. 21. On or about 14 May 2008 an Allied Work Requisition Order ("Remove sludge from 21 Area truck wash (No 5 truck wash)") was ordered by Benjamin Cerezo, BlueScope's Waste Management Officer. 22. Allied commenced work on the cleaning of the settlement tanks at the Site on 20 May 2008. Prior to the commencement of work a pre-work meeting was held between Chris Nikoloski, Benjamin Cerezo and Jose Gonzalez of BlueScope and the Allied work crew, namely Setaleki Kolomaka, Steven Corea and Vojdin Poposki. Each member of the work crew was an experienced operator in high pressure water jetting with Mr Kolomaka having worked for Allied for 7 years, Mr Corea for 5 years and Mr Poposki for 6 years respectively. A toolbox talk was also conducted with Chris Nikoloski and the work crew. 23. During the pre work meeting an Authority to Work Permit (No.827707) ("ATW") was completed and issued by Jose Gonzalez for the period of 20-22 May 2008. The ATW Permit, was part of BlueScope's occupational health and safety system, and authorized the commencement of maintenance work at the site. 24. On 20 May and 21 May 2008 Jose Gonzalez and Benjamin Cerezo, conducted a number of site visits and inspections whilst the work was underway. During their visits, concerns with some aspects of the system of work in place were raised with Allied, being the lack of hearing protection being worn by the work crew, issues associated with the build up of sludge surrounding the settlement tanks and the absence of appropriate barricades. 25. On the morning of 21 May 2008 an excavator fitted with a narrow bucket was used to remove the sediment within the settlement tanks until the size of the bucket being used meant that no further sediment could be removed. While the excavator was working the Allied work crew cleaned the truck wash grates and trenches. Once the excavator could not remove any further product the work crew resumed high pressure water jetting. 26. On the afternoon of 21 May 2008 given the issue which had arisen the previous day regarding the effectiveness of cleaning the sediment within the settlement tanks as the use of the water jetting lance did not appear to be sufficiently effective. Allied proposed to Bluescope an alternative work method for 22 May 2008, namely that the employees should enter inside the tank under confined space conditions with jackhammers to break the sediment up which would have significantly reduced the need for further high pressure water jetting. The Events of 22 May 2008 27. The work crew arrived at the site between 7:00 am and 7:30 am on 22 May 2008 and commenced setting up the equipment. At approximately 8.30 am a toolbox meeting was conducted between Sean McCarthy, Robert Petrevski (Allied Safety Officer) and the Allied work crew. Mr McCarthy provided the work crew with the work pack for 22 May and discussed how the work was to be undertaken on that day, including the possibility of entry into the settlement tanks under confined space conditions. Robert Petrevski discussed the previous day's audit by BlueScope and in particular, the issues of barricading and hearing protection. 28. After the toolbox meeting a further meeting was held on-site to discuss whether the work crew could access the settlement tanks under confined space conditions in order to clean out the tanks more easily. The meeting was attended by BlueScope representatives Jose Gonzalez and Benjamin Cerezo and Allied representatives, William Lee (OHS & Quality First Line Manager), Sean McCarthy, Chris Nikoloski and Robert Petrevski. 29. The result of the discussions was that BlueScope were unable to provide permission for confined space access as BlueScope did not have available employees able to give the required authorization for the confined space permit on the day. 30. Following the meeting between BlueScope and Allied, a separate discussion took place between William Lee and Steven Corea in relation to changing the high pressure water jetting lance and pin jet nozzle insert ('nozzle tip"). Mr Lee suggested that they use a longer lance and a Woma style form 1 or form 4 nozzle tip, rather than a screw in type. Mr Lee stated that a 2mm Woma tip would be more efficient as it produced a greater water flow. Mr Lee claims that he advised Mr Corea that the tip should not be larger than 2mm. However, Mr Corea stated that Mr Lee instructed him to obtain a 2mm or 2.2mm tip. When asked in his interview why he suggested that the tip should be no larger than 2mm Mr Lee advised that it was because of the reaction force. Mr Lee did not discuss with Mr Corea on the use of up to a 2.00mm pin jet, the reaction forces on the operator. Mr Lee could not remember whether he raised the issue of reaction forces on the operator. 31. During the course of this discussion there was no reference or consultation to the manufacturer's nozzle charts (such as the WOMA or URACA nozzle charts), which set out the water flow rates and degree of recoil that will be exerted upon the operator. 32. At approximately 9.45 am Mr Corea went to the Allied store compound within the Recycling Area and obtained a new straight-ridged lance which was fitted with a 2mm nozzle tip. Mr Corea then returned to the No. 5 Truck Wash Station and the crew continued the high pressure water jetting. The work then ceased for morning tea. The Incident 33. At approximately 10.30 am the work crew returned to the settlement tank, discussed progression of the job briefly and continued cleaning the tank. 34. The work was organised on the same basis that it had been organised previously, that is, Mr Kolomaka was to continue to operate the lance manually, Mr Corea was responsible for the control of the high pressure water jetting unit and Mr Poposki was responsible for operating the foot control valve which controlled the flow of water. 35. At the time of operating the lance Mr Kolomaka was wearing a disposable suit, ear plugs, a helmet with face shield and other personal protective equipment. 36. Mr Kolomaka was working over the handrail of the northern side of the settlement tank. Mr Corea stood next to Mr Poposki, facing the settlement tank. The pair were situated some distance behind Mr Kolomaka and were watching his activities. 37. At approximately 10.45 am Mr Kolomaka lost control of the lance that he was operating. Mr Corea and Mr Poposki observed the lance fly back towards them and Mr Poposki released the foot control valve. However by that time, a stream of high pressure water had already struck Mr Kolomaka in the chest. 38. Mr Corea and Mr Poposki rendered assistance to Mr Kolomaka and the emergency services were called. The attempts to revive Mr Kolomaka were unsuccessful and cardiopulmonary resuscitation was ceased at 11.19 am. Investigation of the Incident 39. On 22 May 2008 and 23 May 2008, Inspector Mark Stothard and Inspector Ian Lancaster attended the incident site. Inspector Stothard made observations contained in a Factual Inspection Report and Follow-Up Factual Inspection Report. Attached and marked with the letter " A " is a copy of the Factual Inspection Report of Inspector Stothard dated 11 July 2008. Attached and marked with the letter " B " is a copy of the Follow-Up Factual Inspection Report of Inspector Stothard dated 11 July 2008. 40. During the course of the inspection at the incident site, Inspector Lancaster took a number of photographs. Attached and marked with the letter " C " is a copy of the photographs of Inspector Lancaster dated 22 May 2008 and 23 May 2008. System of Work Prior to the Incident 41. Allied had a documented safe operating procedure for high pressure water jetting activities. Attached and marked with the letter " D " is a copy of the Allied safe operating procedures. 42. The safe operating procedures directly reflected the Australian/New Zealand Standard 4233.1:199, High pressure water (hydro) jetting systems, Part 1: Guidelines for safe operation and maintenance ("AS/NZS 4233.1:199"). 43. Clause 6.7 of the AS/NZS 4233.1:1999 provides that when using a lance or hand-held gun for jetting operations, operators should abide by a number of principles including: a. the person operating the lance or gun should have direct control of the water flow; b. the reaction forces should be taken into account when designing a particular job; c. the reaction force along the axis of the gun barrel should be calculated in order for an average operator to gain control of the gun safely and comfortably. A maximum reaction force of 22.5 kg is recommended for an eight-hour shift and this should not be exceeded for normal operations; and d. where a high reaction force is required to achieve acceptable results, consideration should be given to mechanical control of the nozzle. Attached and marked with the letter " E " is a copy of the Australian/New Zealand Standard 4233.1:199, High pressure water (hydro) jetting systems, Part 1: Guidelines for safe operation and maintenance ("AS/NZS 4233.1:199"). 44. Contrary to clause 3.9 of the Safe operating procedure and clause 6.7 of the AS, on the day of the incident the operator of the lance did not have direct control of the water flow. As such the system of work was not safe as it relied upon a person other than the operator reacting instantly if the operator lost control of the lance. 45. Further, the work crew and Mr Lee did not consult the manufacturer's nozzle charts or consider the reaction forces on the operator prior to undertaking the water jetting operations at the Site. Clause 3.13 of the Safe operating procedure provides that Reaction forces will be taken into account when planning water jetting taks. The reaction force can be defined as: " the force created by the movement of water as it leaves the nozzle. The force acts in the opposite direction to the movement of water" (AS/NZS 4233.1:1999). 46. The manufacturer's nozzle charts, such as the WOMA "Round Jet nozzle Form 4" chart, enables the calculation of reaction forces and provides guidance on whether mechanical control or body support appliances should be used. Although WOMA the manufacturer of the jet nozzle provides its own nozzle chart, Allied and in particular Mr Lee, had a copy of the URACA nozzle chart. URACA are also a manufacturer of high pressure water jetting equipment and the URACA nozzle chart can similarly be used to calculate reaction forces. Attached and marked with the letter " F " is a copy of the WOMA and URACA nozzle charts. 47. The nozzle chart was included in the Allied water jetting operation training. A copy of the nozzle chart was not provided to the work crew. A copy of the nozzle chart was located in the office of Mr Lee. 48. Following the incident it was established that the reaction force at the time of the incident exceeded the maximum recommended force for manual operations, namely 250 Newtons. At the time of the incident, the size of the nozzle was 2.00 mm. 49. According to the Allied safe operating procedures, the manufacturer's nozzle charts and Australian Standards, the reaction force for manual operations must not exceed 250 Newtons ("N") (approximately 26 kg) in the longitudinal axis of the spraying device. If the operators had applied the size of the nozzle and the pump operating speed at the time of the incident to the URACA nozzle chart, they would have seen a reaction force located in Field 3 of the chart. Field 3 of the URACA nozzle chart provides that for reaction forces over 250 N, the nozzle must be mounted on a mechanical system. 50. Accordingly, the reaction force would have necessitated the use of the lance mounted on a mechanical system, such as a brokk - a mechanical device on wheels remotely operated. The defendant had mechanical control devices at the time of the incident available for use and had previously used them for some high pressure water jetting activities. However no such system was used at the time of the incident. 51. In addition the Allied safe operating procedures for this task provide that all persons must wear personal protective equipment. Mr Kolomaka was wearing a disposable suit. He was not however wearing Kevlar body protective. Kevlar body protective clothing was not required by the Allied safe operating procedures, nor the Australian Standards but it is recommended by the manufacturer of the high pressure water jetting equipment. Allied had Kevlar suits and the practice of Allied was that they would only be used by Allied personnel in Sydney when conducting ultra-high pressure work (being work at pressures much higher than work done at the site). Attached and marked with the letter " H " is an example of a Kevlar suit. System of Work After the Incident 52. On 22 May 2008 WorkCover issued the following notices upon Allied: a. Prohibition Notice (No. 152789) which required the company to provide and ensure a safe system of work so as to ensure the operator of the lance has full control of operation; and b. Improvement Notice (No. 7-159642) which required that the high pressure water jetting equipment involved in the incident be inspected and tested by a competent person to ensure safety of future operators of that equipment. Attached and marked with the letter " I " is a copy of the Prohibition Notice issued to Allied on 22 May 2008. Attached and marked with the letter " J " is a copy of the Improvement Notice issued upon Allied on 22 May 2008. 53. Following the incident Allied immediately ceased all high pressure water jetting operations. Allied conducted an investigation into the incident and undertook an extensive review of the systems of work which were in place with respect to high pressure water jetting. 54. Arising from this process Allied undertook the following corrective and/or preventative measures: a. conducted and documented risk assessments for all high pressure water jetting tasks; b. provided refresher training for all existing water jetting operators; c. developed and implemented specialised training programs for high pressure water jetting work for water jetting personnel, supervisors and managers; d. increased and/or implemented the use of mechanically held devices and automated equipment for cleaning operations; and e. purchased additional Kevlar body protection. 55. Allied also established a high pressure water jetting project team consisting of representatives from management, the union and safety committee to establish safe and sustainable high pressure water jetting operations. Co-operation with WorkCover 56. The defendant co-operated fully with WorkCover during the investigation including making facilities available on site for interviews by Inspector Stothard and Lancaster with a number of Allied employees and being responsive to both formal and informal requests for the provision of documents relating to the incident. The defendant 's criminal history 57 The defendant has no prior criminal convictions in NSW. Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying, at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 10In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed, at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." 11Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464, ad idem with the view expressed in Markarian, (at 474): ... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 13The Allied crew of three were cleaning out sludge and sediment from within tanks on the Bluescope steelworks site using a high pressure water jetting system. The equipment and system used by the defendant's work crew involved one of the crew members manually operating a water jetting lance. It was difficult to remove the caked sludge so the crew discussed the problem and decided to change the high pressure water jetting lance and the pin jet nozzle tip. A different type of nozzle tip was chosen as it produced a greater water flow; namely, a straight ridged lance and a different two millimetre nozzle tip. It was obtained from the defendant's store. The new equipment was then used by the work crew. Mr Kolomaka was manually operating the water jetting lance but the crew decided, because of the uneven ground, that another would be responsible for operating the foot control valve. At about 10.45 am on 22 May 2008, the deceased lost control of the lance that he was operating and was struck by a stream of high pressure water. Both of the other crew members observed the lance fly back towards them and one quickly released the foot control valve. Mr Kolomaka died from the injuries he received when struck. 14The defendant pleads guilty but contends the objective seriousness of the offence should be assessed taking into account: its early plea of guilty; that the operators were experienced and aware of the need to calculate reaction forces when performing the task of water jetting; the work was regularly performed by the operators; they were specifically trained and skilled for high pressure water jetting; there were supervisors on site. Further, the defendant asks for consideration given there was a request made by the crew, in the performance of the task, for a safer alternative way to break up the sludge but permission was not granted by Bluescope because of the authorising person's unavailability. Relevance is also placed on the fact there were mechanical controls available (for example, a 'Brokk') for use, which could have remotely operated the jetting device. 15The defendant concedes it was the reaction force of water pressure through the hose and lance that caused the risk but contends that pressure could have been instantly cut off had the foot control been operated by the deceased as the system in place required. It accepts, because the ground was uneven, the decision to have a different member of the crew operate it had been made by the crew for safety reasons. 16The submissions of the defendant must be given consideration in the context of the section of the Act under which it is charged. The allegation is the defendant failed to ensure the health and safety of its employees, particularly Mr Kolomaka, by failing to provide a safe system of work. The defendant in effect contends there were a number of known, alternative methods available to its crew, different from the method chosen, which, if adopted, would have made the performance of the task safe. 17However, the Act requires an employer ensures a safe system of work. This requires the employer to ensure the conduct of the task at hand is performed under its safe working method. Under s 8(1) of the Act, the working environment of an employee must be safe. There was a failure by the defendant to ensure its employees measured reaction forces once another high pressure water jetting lance was procured. Further, it was imperative that if water pressure built, the release by foot control was instant. It follows, once an election was made to alter the defined safe work method with the use of a new lance and another crew member operating the release, there should have been made available the appropriate safety precautions and protective equipment for the employees. There was always placed on the defendant the obligation to ensure employees who operated the hand lance (or any other device) had direct control of the water flow and tested the water pressure for force. The system of work chosen on the relevant day was not safe. Employees were placed at risk. 18I accept, from a reading of the available documentation, there were a number of alternative systems which could have been selected for the performance of this task when the difficulty was identified. The incident occurred because the system chosen was varied (a new lance was chosen) and the variation was not risk assessed on site. The system was also varied when the crew split the control of the foot release from the hose operator. The water pressure became an issue with the change of nozzle and while there were charts available, to guide as to the change of nozzle jetting pressure, they were not consulted. Given the choices made, there was a failure to calculate reaction force; a failure to provide protective clothing; a failure to ensure the operator had direct control of the water flow. These were failures by the defendant corporation which could have, if implemented, ensured the work could be safely performed. Each failure contributed to the breach. While there was a failure to choose a mechanical control for the performance of the task (and the evidence is there was a suitable mechanical device on site), once the choice was made to change the lance the failure to choose a mechanical control did not contribute to the incident. I accept the submission of the defendant in this regard. The defendant has pleaded guilty to a particular that it failed to ensure the choice was made for the use of the mechanical control. However, once a different choice was made this pleaded failure did not contribute to the risk. I dismiss the first particular but find otherwise the breach established. It was a serious breach but there is some consideration given where, in the circumstances, there were a number of planned safe systems in place which, if the defined work methods were strictly complied with, would have allowed the task to be performed safely. 19The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. It was well known to the employer that the reaction force of the water in a hose was a basic consideration when the form of water jetting was determined. Controls were there but were, in the circumstances, ineffective. I accept there was a foreseeable element to the offence which makes it an even more serious offence. 20VES purchased Allied, the defendant company, in July 2008. However, employees were not transferred to VES until effectively April 2009. The defendant corporation is still on the company records but no longer has employees, nor does it conduct any business. VES now conducts the Allied contracts with Bluescope, providing high pressure water jetting, vacuum loading, plant hire, labour for general cleaning and gardening services at the steelworks at Port Kembla. 21Documents collated by Mr Nicholas relating to the safety systems operating at the Allied site prior to the incident have been tendered, as well as the VES review of ex Allied sites to now ensure: 25. ... this range of corrective actions in respect of the ex Allied sites is to the following effect: (a) There is now a great emphasis in planning work and adopting the use of mechanical control devises rather than manual operations. As a consequence there is much less manual hire pressure water jetting being undertaken and where it is rigid lances are not used and the operator must have control of the primary stopping device (via a trigger on a gun). (b) Where manual operations are established as being necessary both supervisors planning the job and operators are: (i)Fully aware of the risks associated with reaction forces and the need to accurately assess those reaction forces for each task; and (ii)Required to wear PPE (including various forms of Kevlar armour) above that specified in the relevant Australian standard as appropriate to the task being undertaken. 22The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were obvious steps that could have been taken which either singly or in combination would have eliminated or reduced the risk. These steps have now been implemented. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical. 23The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant ( Lawrenson Diecasting (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any employee being required to manually handle the lance without having that employee have instant control of the water pressure and without any consideration being given to the reactive force of the water once a different nozzle was chosen. 24The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. In Capral , the Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388): the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 25The defendant contends no element of specific deterrence need be included in penalty as the defendant company, Allied, no longer operates. Evidence satisfies Allied is now a wholly owned subsidiary of VES, although it stays on the record. The employees were held by the defendant corporation for a period of time after the offence. In dealing with the issue of specific deterrence, the Court in Capral noted, at [76]: ... the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence ... and further: The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. and at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. However, in balancing the facts here, I do not include in penalty an element of specific deterrence. 26As to general deterrence, VES has fully analysed the incident. It has retrained all high pressure jetting operators; revised all jetting procedures through risk assessment; re-skilled all operators at the worksite; ensures that for water jetting tasks a mechanical control device is preferred rather than a device requiring manual operation. What the circumstance reveals, however, is that when problems are met on site in the performance of a task, as happens daily in our industrial climate, and defined safe work methods are altered to meet that problem, those variations must then be risk assessed, in the context of the chosen safe work method, to ensure the safe performance of the task. Here, while there were safe work methods available, the necessary alterations that were made to one of those work methods on site were not risk assessed, although the risk associated with increased water pressure was a known risk - as was the necessity for the release control mechanism to be instantaneous. 27I accept VES has a focus on safety and strives to be a leader in its field. However, there will be a small element of general deterrence to penalty as the Court once more reiterates that any variation made on site to safe work methods in place, must then be measured against recognised safety standards. In today's industrial climate, especially in the operation of heavy industry, it is indisputable that on site difficulties with the performance of particular tasks will sometimes arise. However, once it is recognised a variation is to be made to a safe work method, the variation must again be risk assessed in the context of a revised work method. Supervisors on site, who carry the burden of ensuring the task at hand is properly performed, also carry the extra burden, on behalf of their employer, to ensure that any variation made to an existing work method is itself risk assessed in the context of the safe performance of the job at hand. A failure to supervise, however, is not a pleaded element of the breach. 28It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131 ; (2004) 60 NSWLR 168, at [56]: ...it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 29A plea of guilty was entered at the earliest stage in the proceedings ( R v Thomson; R v Houlton ). The defendant is, therefore, entitled to a discount of 25 percent for the utilitarian value of its early plea of guilty. The defendant fully co-operated with the WorkCover Authority throughout the investigation of the incident. 30As to the contrition and remorse of the defendant corporation, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides "remorse" may be taken into account as a mitigating fact if, and only if: ... the offender has provided evidence that he or she has accepted responsibility for his or her actions, and 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). And in Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Relations Commission of New South Wales) said, at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). 31The defendant has pleaded guilty to the charge. I have before me the most effective expression of remorse I have considered. It has been explained by Mr Nicholas: 26. In terms of assistance to the deceased's family since the incident, Allied/VES has: (a) Gary Bruce, Allied's Operations Manager at the time of the incident and myself went to see Mrs Kolomaka on the morning of the next day to express our remorse and sympathy for her loss. We offered the family counselling services through our Employee Assistance Program. A visit to the site of the incident was arranged at Mrs Kolomaka's request on the following day (Saturday); (b) Paid to have all family members brought out to Australia for Mr Kolomaka's funeral as well as paying for the funeral; (c) Established a trust fund for Mr Kolomaka's family with contributions from Allied and VES ($100,000), the Australian Workers Union, Bluescope and other contractors in the Wollongong area. 80 percent of the proceeds of the Foundation are to go to the family for long-term home and education expenses, 15 percent towards an education scholarship for a member of the Tongan community in Wollongong and 5 percent towards an industry award for safety excellence across companies in the Illawarra Region; (d) Established a memorial recreational area dedicated to Mr Kolomaka at the Port Kembla site; (e) Some 12 months after the incident held a fund-raising function for the family at Wollongong involving a dinner and auction items, all the proceeds of which went to the Foundation which raised $58,000. 27. VES and Allied wish to emphasise their contrition in respect of the tragic death of the deceased and once again extend their sincere sympathies to Mr Kolomaka's family and relatives. The defendant's family have assured the Court, through counsel, that the benefits of the fund have been accessed for the education of the children and for their safe and comfortable housing. The defendant corporation has, I find, made a serious expression of its remorse and contrition. It is to be commended. 32The defendant has no prior convictions. Therefore, the maximum penalty is $550,000. Allied has operated in the mining, industrial and steel industries, what is known as heavy industry, for some 70 years without a recorded breach of any OHS Act. It has a good industrial record. 33In the circumstances, I accept the plea and find the defendant guilty of a breach of the Act. 34A Victim Impact Statement has been received by the Court. In receiving it I adopt the words of Boland J in Inspector Glass v Foamex Polystrene Pty Ltd [2004] NSWIRComm 100 when he said, at [43]: ... the fact, however, that the Court is required in the case of a death, to receive a victim impact statement given by a family victim and acknowledge its receipt, and that the Court may make any comment on it that the Court considers appropriate, may help in releasing some of the family's grief and, importantly, it assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace. I accept the defendant has expressed contrition for the offence as indicated in its plea of guilty and has expressed remorse in the consideration provided to the family of the deceased, but I find this was a serious offence. A young family have lost their father. A young woman has lost her husband. It is an everlasting sorrow to them but there has been expressed, in a most practical way, contrition and remorse. I take into account the subjective elements placed before me. Orders 35For all the above reasons, I make the following orders: (1)In Matter No IRC 393 of 2010, I find the defendant guilty of the offence as charged. (2)The defendant is fined in the sum of $130,000 with a moiety to the WorkCover Authority of New South Wales. (3)The defendant to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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. Decision last updated: 22 March 2011