Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Selby v Mark David Coulbeck [2011] NSWIRComm 36 Hearing dates: 1 March 2011 Decision date: 01 April 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In IRC 1677 of 2009, I find the defendant, Mark David Coulbeck, guilty of the offence as charged. 2. In IRC 1677 of 2009, the defendant is fined in the sum of $7,000 with a moiety to WorkCover Authority of New South Wales. 3. In IRC 1678 of 2009, I find the defendant, Ai Chau Lam, guilty of the offence as charged. 4. In IRC 1678 of 2009, the defendant is fined in the sum of $3,500 with a moiety to WorkCover Authority of New South Wales. 5. I order the costs of the prosecutor shall be shared equally between the defendants. Each defendant will therefore pay as costs to the prosecutor the further sum of $7,710.68. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breaches by two individual defendants under s 8(1) by virtue of s 26(1) - two prosecutions of Directors of corporation - one Director bankrupt - well known risk of exposing cutting blade - guard removed from machine - alterations made to machine to keep it operational - no system to protect employee from exposure to risk - foreseeable risk - Directors working on site - some safety procedures in place - no prior convictions - serious financial difficulties - application of ss 10, 10A of Crimes (Sentencing Procedure) Act 1999 - pleas of guilty - application of s 6 Fines Act 1996 - penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Fines Act 1996 (NSW) s 6 Occupational Health and Safety Act 2000 (NSW) s 8(1), s 26(1) Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Cooper v Kwik-Seal Pty Ltd & Anor [2006] NSWIRComm 48 Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Mulder v Girotto Precast Pty Ltd [2008] NSWIRComm 94 Inspector Patton v Hall and Quinn [2010] NSWIRComm 6 Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 Postiglione v R (1997) 189 CLR 295 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 R v Wilhelm [2010] NSWSC 378 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited [2000] NSWIRComm 277, (1999) 95 IR 383 WorkCover Authority of NSW v Missingham [2007] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 Category: Principal judgment Parties: Inspector Selby (Prosecutor) Mark David Coulbeck (First Defendant) Ai Chau Lam (Second Defendant) Representation: C Magee of Counsel (Prosecutor) D E Baran of Counsel (Second Defendant) WorkCover Authority of NSW (Prosecutor) Bartier Perry Solicitors (First Defendant) Zelden Solicitors (Second Defendant) File Number(s): IRC1677 of 2009 IRC1678 of 2009 Judgment 1These prosecutions are brought by Inspector Dean Selby of the WorkCover Authority of New South Wales against Mark David Coulbeck (the first defendant) under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 ("the Act") and Ai Chau Lam (the second defendant) under s 8(1) by virtue of s 26(1) of the Act, by way of amended Applications for Order. 2In Matter No IRC 1677 of 2009, it is alleged Mark David Coulbeck, on 2 November 2007, contravened s 8(1) by virtue of s 26(1) of the Act in that he failed to: ensure the health, safety and welfare at work of all its employees and in particular, Yashwin Amore Prasad, contrary to section 8(1) of the Act. 3In Matter No. IRC 1678 of 2009, it is alleged Ai Chau Lam, on 2 November 2007, contravened s 8(1) by virtue of s 26(1) of the Act in that she failed to: ensure the health, safety and welfare at work of all its employees and in particular, Yashwin Amore Prasad, contrary to section 8(1) of the Act. The particulars pleaded against each defendant are similar and read: (a) At all material times (each) defendant was a director of the corporation; The particulars of the risk are that: (b) The health and safety of the employees of the corporation was put at risk of injury of amputation of fingers by coming into contact with the crush point between the blade and die of a Chalmers & Corner Brake Press ("the Brake Press") when the Brake Press was activated. The particulars of the acts or omissions in failing to eliminate that risk are that: (c) The corporation failed to guard the Brake Press, used by its employees so as to prevent contact by those persons with the dangerous parts of the plant including by ensuring the guard fitted to the Brake Press was not removed or another guarding system was implemented which prevented contact with the dangerous moving parts of the Brake Press. (d) The corporation failed to ensure that the system of work put in place for the operation of the Brake Press by its employees was safe and without risks to health in that it failed to ensure that: i. the foot bar and the extended shaft of the Brake Press had a physical barrier or protection in the form of shrouding to prevent accidental activation of the blade by an operator pressing any part of the foot bar or extended shaft; ii. employees could not override the modified microswitch system by the clamping or weighing down of the metal ring attached to the microswitch into the 'active' position; (e) The corporation failed to conduct a risk assessment that identified and controlled the risks associated with an employee circumventing the system of work put in place for the operation of the Brake Press and in particular: i. the procedure requiring pulling of the metal ring to activate the machine; ii. the absence of a guard; iii. the ability to use the system with one hand when the blade was operational. (f) The corporation failed to provide employees with adequate information, instruction and training in relation to the safe operation of the Brake Press, including failure to: i. formally assess and document Mr Prasad's competency to safely operate the Brake Press in accordance with the 'Safety and Operating Procedure for the Brake Press'. (g) The corporation failed to provide adequate supervision to its employees working on or with the Brake Press in that it failed to take measures, including: i. formally monitor or review Mr Prasad's competency to safely operate the Brake Press in accordance with the 'Safety and Operating Procedure for the Brake Press'; ii. provide a greater level of supervision to Mr Prasad given his age, competence and limited experience, when required to perform duties on the Brake Press; iii. ensuring that Mr Prasad did not override the modified microswitch system by the clamping or weighing down of the metal ring attached to the microswitch into the 'active' position; As a consequence of the corporation's failures, its employees, and in particular Yashwin Amore Prasad, were placed at risk of serious injury. 4Each defendant pleads guilty to the charge against them. 5Mr C T Magee of counsel appeared for the prosecutor. Mr J B Mattson, solicitor, appeared for the defendant (Mr M Coulbeck) and Mr D E Baran of counsel appeared for the defendant (Ms A Lam). The prosecutor relied upon a agreed Statements of Facts and annexures. 6The defendants relied upon an affidavit of Mark David Coulbeck sworn on 10 February 2011, with significant attachments including pre-existing and post-incident safe work methods and financial documentation, an affidavit of Ai Chau Lam sworn 8 February 2010 attaching relevant documentation relating to her personal financial position, a letter from Bartier Perry, Solicitors, dated 24 February 2011 with additional documentation of personal circumstances of Mr Coulbeck, ASIC Search documents, references and tax returns. 7It was agreed that evidence in one prosecution be evidence in the other. 8An Agreed Statement of Facts was tendered in each prosecution. In Matter No. IRC 1677 of 2009 (Mr Coulbeck), preliminary paragraphs relevantly read: 2. At all material times, Mark David Coulbeck ("Mr Coulbeck") was a director of Advanced Wire Products Pty Ltd [ACN 097 782 431 [now under External Administration and/or Controller Appointed] whose registered office is situated at Unit 1, 28 Harley Crescent, Condell Park in the State of New South Wales ("corporation"). 3. At all material times Advanced Wire Products Australasia Pty Ltd ("Advanced Wire") undertook the business of manufacturing display cabinets and products at the premises. Advanced Wire was registered with ASIC on 9 August 2001. 4. At all material times, Mark David Coulbeck was a director and the secretary of Advanced Wire. 5. At all material times, Ai Chau Lam ("Ms Lam") was a director of Advanced Wire. 9In Matter No. IRC 1678 of 2009, the preliminary paragraphs of the Agreed Statement of Facts relevantly read: 2. At all material times, Ai Chau Lam ("Ms Lam") was a director of Advanced Wire Products Pty Ltd [ACN 097 782 431 [now under External Administration and/or Controller Appointed] whose registered office is situated at Unit 1, 28 Harley Crescent, Condell Park in the State of New South Wales ("corporation"). 3. At all material times Advanced Wire Products Australasia Pty Ltd ("Advanced Wire") undertook the business of manufacturing display cabinets and products at the premises. Advanced Wire was registered with ASIC on 9 August 2001. 4. At all material times, Mark David Coulbeck was a director and the secretary of Advanced Wire. 5. At all material times, Ai Chau Lam ("Ms Lam") was a director of Advanced Wire. The Agreed Statement of Facts continued in both matters as follows: 8. Mr Coulbeck was a 50% shareholder. Mr Coulbeck performed the role of managing director of Advanced Wire. In that role his responsibilities included sales, design, management and maintenance. He exercised day-to-day control of Advanced Wire's operations at the premises with a particular focus on sales, design, management and maintenance. 9. Ms Lam was also a 50% shareholder. In the role of director of Advanced Wire, her responsibilities included accounts, production, purchasing and staffing issues. Ms Lam exercised day-to-day control of Advanced Wire's operations at the premises with a particular focus on accounts, production, purchasing and staff issues. 10. At all material times, Yashwin Prasad was employed by Advanced Wire as a process worker and general hand. Yashwin Prasad commenced employment with Advanced Wire on or about 10 April 2007. 11. Yashwin Prasad's main duties at the premises included operating plant, packing product and deliveries. 12. As at 2 November 2007, Yashwin Prasad was 18 years old and had been employed by Advanced Wire for approximately 6 months. 13. At all material times, Advanced Wire employed Avinesh Prasad as a foreman/supervisor at the premises. Avinesh Prasad was Yashwin Prasad's direct supervisor. Avinesh Prasad and Yashwin Prasad are cousins. 14. Advanced Wire also employed a number of other staff at the premises including Thi Ngoc Nu Ngyen ("Nu") as a process worker. 15. Advanced Wire also had a number of pieces of machinery at the premises which were used in the manufacturing of display products. This included a Chalmers & Corner Brake Press ('the Brake Press'). The Brake Press 16. The Brake Press, in its original configuration, had a guard at the front of the Brake Press which was designed to prevent access to the danger point/hazardous area at the front of the plant. The guard was connected to a microswitch on the Brake Press. This system prevented the Brake Press from operating by cutting off air supply if the guard was in the up position. 17. The Brake Press had a danger warning sticker on the lower right side indicating "Unauthorised persons not to use this machine" and depicting danger from placing hands in the press by indicating hands are not to be placed in the press. A picture of this danger warning sticker is attached "A" to this Statement of Agreed Facts. 18. Advanced Wire had removed the guard from the Brake Press "a couple of years" before the incident for the task of forming the product that Yashwin Prasad was undertaking on the day of the incident. The guard was kept inside the factory. 19. The guard had been removed because it hindered the access of the operator when retrieving material from the blade and die area after it was formed, due to material sticking to the blade. 20. The Brake Press had been further modified by Advanced Wire due to the guard having been connected to the micro switch. 21. Advanced Wire had connected a short piece of nylon cord to the micro switch. The other end of the cord was attached to a metal ring to be used as a handle. Pulling down on the ring caused the micro switch to engage. 22. The foot bar had also been modified by Advanced Wire by attaching an extended shaft to the foot bar. The shaft extended out at approximately 500 mm at 90 from the front of the Brake Press. 23. By pulling down on the ring and pressing the foot bar at the same time allowed the air supply to flow and the Brake Press to then operate. 24. Advanced Wire made this modification on the basis that the extended shaft would allow the operator to stand further from the Brake Press when operating the plant. 25. The foot bar and the extended shaft did not have any protection in the form of shrouding and the blade could be activated by pressing any part of the bar or extension. 26. Advanced Wire had a documented system of work for operating the Brake Press when forming the metal channel. This was contained in a document entitled 'Safety and Operating Procedure for Brake Press'. This document had been developed by Mr Mark Coulbeck in 2006.This documented work procedure involved 13 steps. 27. Advanced Wire had placed a copy of the 'Safety and Operating Procedure for Brake Press' document on the wall behind the Brake Press inside a folder. 28. The 'Safety and Operating Procedure for Brake Press' document detailed the use of the metal ring which is referred to in the document as "the safety hands-free handle" where the machine was to be operated without a guard. It also stated that the operator should not override the safety hands-free handle or switch. The 'Safety and Operating Procedure for Brake Press' document provided, amongst other things: NOTE: THIS MACHINE CAN CAUSE SERIOUS INJURY, KEEP ALL FINGERS AND HANDS CLEAR AT ALL TIMES ... 4. Do Not Override the Safety Hands Free Handle or Switch ... 9. Grab and the Pull Safety Handle, check all is clear in and around machine and is safe to operate 10. if safe, press foot pedal, press will activate ..... ALWAYS CHECK THAT THE OPERATOR, SURROUNDING AREA AND MACHINE IS CLEAR AND SAFE, DO NOT RUSH!! A complete copy of the 'Safety and Operating Procedure for Brake Press' document is attached "B" to this Statement of Agreed Facts. The incident on 2 November 2007 29. On 2 November 2007, Yashwin Prasad had been directed by his supervisor, Avinesh Prasad, to undertake duties involving the use of the Brake Press. Yashwin Prasad had been undertaking these duties on the day before. 30. Yashwin Prasad had used the Brake Press previously during his employment, often for a couple of hours a week, sometime more or less, but weekly. 31. The task that Yashwin Prasad was required to perform involved the manufacturing of metal channels. The metal channels were produced by placing a flat piece of metal measuring approximately 500 mm long x 30 mm wide and 0.8 mm thick into a slot of the jig (stationery lower die) set up for the task on the Brake Press. 32. The task then required Yashwin Prasad to activate the Brake Press which would cause a metal blade to lower in one stroke, approximately 30 mm, forcing the metal in the slot down into the set shape of the jig forming the material and retract back up. The flat metal strip was formed into a U-shaped channel measuring approximately 10 mm x 10 mm x 10 mm. 33. The formed channel after being pressed into the jig by the activated blade would either remain stuck on the blade as it retracted or stay tightly in the jig. The channel would then be manually removed by the operator by hand. 34. As at 2 November 2007, in order to activate the Brake Press, an employee was required to pull down on a metal ring which was attached by a short piece of nylon cord to a microswitch attached to the Brake Press. The employee was then required to press a foot bar to activate the blade. 35. On the morning of 2 November 2007, Yashwin Prasad set up the Brake Press to perform the task. 36. However, Yashwin Prasad had modified the system of work by placing a clamp on the metal ring attached to the microswitch, which weighed it down, thereby engaging the microswitch in the 'on' position constantly. This allowed airflow to the Brake Press. Therefore, to activate the blade it was only necessary to press the foot bar or shaft. 37. This system of work allowed Yashwin Prasad to use two hands to set the machine for operation and to use two hands to remove the formed channel from the blade or jig. This permitted the task to be performed more easily and quickly by Yashwin Prasad. 38. At approximately 7:30 am, on 2 November 2007, Yashwin Prasad was performing the task of forming the metal channels on the Brake Press. After activating the machine and a metal channel being formed, Yashwin Prasad reached into the area between the blade and the jig with both of his hands to free the formed channel from the blade or the jig/die. 39. At this moment Yashwin Prasad inadvertently pressed the foot bar or the connected shaft, which activated the blade of the Brake Press. The blade came down in one stroke and amputated fingers from both hands. 40. There were no witnesses to the incident, but immediately after the incident Nu, who was working on a machine next to the Brake Press, heard Yashwin Prasad scream and saw blood on the Brake Press. She immediately asked the supervisor to call an ambulance. 41. Nu, Avinesh Prasad and another employee, Rakes Chandraverma, gave Yashwin Prasad immediate assistance by covering his hands to stop the bleeding. Nu retrieved the amputated fingers from damaged gloves in the Brake Press and placed these on ice. 42. The injuries sustained by Yashwin Prasad were the amputation of the index finger and middle fingers down to the middle knuckle, on both the right and left hands. The ring finger on the right hand was also amputated to just below the top digit. 43. Yashwin Prasad was taken by ambulance to Liverpool Hospital. He underwent several operations on his amputated fingers. The ring finger on his right hand was successfully reattached, but attempts to reattach the index and middle fingers of both hands were unsuccessful. He remained in Liverpool Hospital for approximately 2 weeks. 44. Since the incident Yashwin Prasad has continued to undergo hand therapy. He has also continued to consult a psychologist. 45. Yashwin Prasad was off work for approximately 3 months. He was offered light duties work at Advanced Wire, but was unable to return due to psychological injuries which meant he could not work in the vicinity of the Brake Press. System of work before the Incident Unsafe Plant 46. At the time of the incident the Brake Press did not have any form of device to prevent access to the danger point/hazardous area. Access to the danger point/hazardous area between the blade and die was possible from the front both sides of the machine. 47. The blade would lower in single stroke of approximately 30 mm into the jig. 48. The modification to the Brake Press, involving the metal ring connected by piece of nylon cord to the microswitch did not prevent access to the danger point/hazardous area between the blade and die when the blade was operational. This was because it could be overridden and disabled by an operator. 49. Additionally, the Brake Press was further modified by Advanced Wire, by the attachment of an extended shaft to the foot bar of the Brake Press. The blade could be activated by pressing any part of the foot bar or extension. 50. Further, to pull on the metal ring did not require two hands. It could be done with one hand thereby still exposing the operator to risk of placing one of their limbs between the blade and die when the blade was operational. 51. Prior to the incident, Mr Coulbeck had from time to time, when undertaking maintenance on the Brake Press, used a system of clamping or weighing down of the metal ring into the 'active' position to override the microswitch. Mr Coulbeck is not aware of how Yashwin Prasad gained knowledge of how to disable the ring device. 52. When he was interviewed on 3 July 2008, Yashwin Prasad was asked question in relation to the ring pull device. These included the following questions and answers: "Q68 Can you explain to me the purpose of the ring pull device? A69 It was a safer way to use the machine the blade will not go down if you use that. Q69 At the time of the incident were using the ring pull device? A69 No I put a clamp that is heavier and it stays down Q70 Who disabled the ring pull device on the day of the incident? A70 It was already disabled on the day, as it was always disabled, unless you need to change it for a job. I properly disabled it last time I was using it, I don't really remember when it would have been done." 53. Mr Coulbeck, in his regular and periodic walks around the factory, had not seen Yashwin Prasad or any other employee weigh down the pull ring when using the Brake Press. 54. Mr Avinesh Prasad instructed all employees, including the injured person, that the Brake Press was not to be used without the pull ring device. Prasad told the injured person "never to disarm the safety lever". 55. Mr Avinesh Prasad states that he checked on Yashwin Prasad first thing on the morning of the incident for a couple of minutes and observed that the pull ring device was not disabled. 56. Nu was undertaking spot welding at the back of the factory next to the Brake Press. Nu stated that it was normal for Yashwin Prasad to disable the pull ring device. However, he was not aware if it was disabled on the day of the Incident. Nu was not aware of whether the Supervisor, Avenish Prasad or anybody else from Advance Wire, was aware that Yashwin Prasad was operating the machine with the ring pull device disabled. Risk Assessment 57. A risk assessment had been conducted by Advanced Wire when it commenced undertaking the task of forming metal channels on this machine. This risk assessment was not documented. Mr Coulbeck stated that he was involved, as well as possibly Avinesh Prasad and Ms Lam, in the risk assessment. 58. It was during this risk assessment that the modification of the machine, involving the removal of the guard and the use of the metal ring attached by nylon cord to the microswitch, was introduced. 59. The safe operating procedure was prepared following this risk assessment. Safe Work Method Statement 60. Yashwin Prasad stated that he did not receive a safe work procedure document (i.e. the document tilted Safety and Operating Procedure for Brake Press) prior to operating the Brake Press. 61. Advanced Wire had placed a copy of the 'Safety and Operating Procedure for Brake Press' document on the wall behind the Brake Press inside a folder. 62. Yashwin Prasad stated he was not aware of what was kept there and assumed that it contained information about fixing the machine. 63. Mr Prasad said he only received verbal instructions on the use of the Brake Press. 64. Mr Avinesh Prasad trained Mr Prasad on the use of the Brake Press. Mr Avinesh Prasad recalls training Mr Prasad but forgot to get Mr Prasad to sign the training register. 65. The system of work as set out in 'Safety and Operating Procedure for Brake Press' did not eliminate the possibility of the operator's limbs coming into contact with the danger point/hazardous area between the blade and the die/jig. 66. As a result, even if the steps were followed as set out in the procedure there was still a risk of the operators upper limbs/hands coming in contact with the blade. 67. Additionally the product after being formed would stick tightly to the blade or remain stuck in the jig. The system of work necessitated the form channelled to be removed manually by the operator. This required the operator to reach in between the blade and die with their hands to retrieve the metal channel. The system thereby placed the operator at risk of having their hands caught in the danger point/hazardous area between the blade and the die/jig. Information, instruction, training and supervision 68. Prior to the incident the responsibility for training employees, assessing and deeming them to be competent to operate plant was given to the supervisor, Avinesh Prasad. 69. Avinesh Prasad had worked at Advanced Wire since 2003. He worked for three years as a process worker. After three years he was promoted to supervisor. 70. Avinesh Prasad said the company did not provide formal training on operating the machine. 71. The training and instruction provided to Yashwin Prasad involved his supervisor, Avinesh Prasad, showing him how to operate the machine and how to conduct the task. Avinesh Prasad then observed Yashwin Prasad conducting the task before being deemed competent. The training of Yashwin Prasad occurred for about two weeks. 72. Advanced Wire had a Training Register which included a specific document in relation to training in the operation of the Brake Press. The person who trained the employee and the employer were each required to sign the Training Register. By signing the Training Register, an employee was required to attest to the fact that they had read and understood the "Operating and Safety Procedures for the Brake Press" document. 73. Yashwin Prasad did not sign the Training Register. Avinesh Prasad stated that he forgot to get Yashwin Prasad to sign the Training Register. 74. Yashwin Prasad began operating the Brake Press within the first week of his employment. He operated the Brake Press on a regular basis, normally 3 days per week, ranging from an hour per day up to a full day. 75. Yashwin Prasad had no previous experience operating a Brake Press and had not worked in a similar industry before commencing work with Advanced Wire. 76. Avinesh Prasad was required to supervise all of the employees in the production area. This was approximately 10 employees at the time of the incident. 77. Avinesh Prasad stated that he would check on all employees on a regular basis. Details of the systems of work after incident 78. Immediately after the incident Advanced Wire decommissioned the Chalmers and Corner Brake Press and it was later removed from the premises. 79. Immediately after the incident Advance Wire issued safety instructions to its workers, including "NO GUARD NO START". A copy of notes of a safety meeting held on 5 November 2007 is attached to this document. 80. After the incident, Advanced Wire reviewed and revised its existing policies and procedures, and developed new policies and procedures. 81. Since the incident, risk assessments have been conducted and documented on all existing plant. Controls have been implemented to improve the safety of the workplace. 82. All employees were trained in the new procedures and risk assessments and all employees had to sign off that they had been trained. 83. Advance Wire trained extra employees in first aid. Advance Wire also undertook fire training and emergency exit planning. 84. Advance Wire gave all employees an extra 15 minutes before work to talk about safety issues and undertake a safety inspection of their work area. 85. Advance Wire's management implemented toolbox talks on a four weekly basis to address occupational health and safety issues. The supervisor conducted weekly safety talks with the employees. 86. Mr Coulbeck personally ensured he did a safety walk around on a weekly basis to check all machines and identify possible hazards. 87. Advanced Wire offered suitable return to work duties for Yashwin Prasad. They offered him a full-time position to work in the office away from the production area. 88. On 8 February 2008, Prohibition Notice 153379 was issued on Advanced Wire in relation to the Brake Press. Advanced Wire complied with this notice. Relevant Principles 10In 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) and s 26(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 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). 11Their 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]). 12Spigelman 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]). 13The 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. In 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.' 14Of 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 15In 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 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... 16Yashwin Prasad was 18 years old and had been employed by Advanced Wire Products Australasia Pty Ltd (Advanced Wire) for six and a half months. Advanced Wire was a corporation but it has now been removed from the Corporations Register. Both defendants worked at the premises of Advanced Wire and were directors. Mr Coulbeck was in effect the CEO and Ms Lam was in effect the financial officer of the corporation. Both had invested significant monies into the business. 17The essence of the offence, as pleaded against each defendant, was that a dangerous cutting machine had its safety guard removed and a young male employee, in operating the cutting machine. The risk became a reality and his hands were caught in the cutting machine whereupon he lost three fingers of his right hand and two from his left hand. 18Some matters were put before the Court, by the defendants, for its consideration in its assessment of the objective seriousness of the offence. 19Mr Coulbeck contended the guard was removed because metal used to be caught in the machine and the machine was more effective without a guard. Further, a clamp had been placed on the micro switch which left the machine in operation. It was asserted the machine was safer this way because it could then be operated solely by the use of the foot pedal. I reject these propositions. 20The primary failure was that at the time of the incident the brake press machine did not have any guard on the blade to prevent an operator's exposure and access to the dangerous point/hazardous area between the blade both from the front and either side of the machine. The modification to the brake press, involving the metal ring being connected by a piece of nylon cord to the micro switch allowing the machine to always be in operation mode, did nothing to prevent access to the danger point/hazardous area between the blade and die/jig when the blade was operational. Further, Mr Prasad did not receive a safe work procedure document (for example, the document titled "Safety and Operating Procedure for brake press") prior to operating the brake press. He only received verbal instructions on the use of the brake press. 21An examination of the documented system of work, as set out in "Safety and Operating Procedure for Brake Press", did not eliminate the possibility of the operator's limbs coming into contact with the danger point/hazardous area between the blade and the die/jig. Even if the steps documented were followed there was still a risk of the operator's upper limbs/hands coming into contact with the blade. Given the guard had been removed, Mr Prasad was not adequately supervised in the performance of his duties on the Brake Press. The system that was in place exposed persons working on the Brake Press to considerable risk to their health and safety. 22Both defendants worked on the premises. Photographs tendered reveal the eye could see the blade was exposed and the risk was therefore obvious. These were serious offences. The removal of the guard on a cutting machine (a dangerous machine) revealed a well known, even basic, safety breach. An open blade is an obvious risk to safety. 23There was a foreseeable element to these offences which makes them more serious. The foreseeable element is one carried by both defendants as directors of the corporation who were obliged under the Act to ensure the safety of their employees and especially since each worked at the site of the risk. 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 Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 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. and 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. 25As to specific deterrence, the corporation is no longer operating. Mr Coulbeck suggested one day he would again like to manage a factory operation. However, he is at present working as a salesperson. Ms Lam is an accounts clerk. 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 ... 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. 26I see no evidence that there should be an element of specific deterrence in this penalty. While both personal defendants are operational, they are no longer conducting manufacturing businesses. Neither has employees working under them. While Mr Coulbeck has an ambition to one day return to management, he is at present in a low paying position with no authority or prospect of leadership. There will be no element of specific deterrence. 27However, as to general deterrence, there will be an element factored into each penalty. This was such a basic safety breach of the Act by directors. It was known that a guard was removed from a cutting machine to improve production. All the additions made to the workings of the machine were but a distraction to safe working. It must be reiterated, steps such as removing a guard from a machine exposes what, even in the design, is an acknowledged risk to safety. All directors have an obligation to ensure that known hazards from working with dangerous machinery are risk assessed, all safety measures are left in place and are actively promulgated and enforced with their employees. The industry must be reminded the guards on dangerous parts of machinery are designed to ensure safety and must be left in place. Increasing production is not an acceptable reason for removing a safety feature. 28Further, this employee was young and not properly trained, instructed and supervised. The words of Walton J, Vice-President in WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited [2000] NSWIRComm 277; (1999) 95 IR 383 at [230] are also apposite: . . . In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers. The youthfulness of Mr Prasad makes it a more serious offence. He was young, untrained and now, with two seriously damaged hands, will have difficulty in seeking work in a labouring capacity. The gravity of the risk is exposed in this circumstance. 29Each defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. It 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)). 30In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99, the Full Bench (Hungerford, Marks and Schmidt JJ) observed (at 106): We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OH&S Act. ... I accept both defendants entered early pleas. In accordance with the principles of R v Thomson; R v Houlton, I accept there is a utilitarian value to each defendant's early plea of guilty. I allow in the circumstances a 25 per cent discount for the utilitarian value of each plea. 31The defendants co-operated fully with the WorkCover Authority throughout its investigation. 32I accept the defendants have, until the incident, been good industrial citizens. They had been operating the corporation for three years with no prior convictions. The maximum penalty for each defendant is $55,000. 33The principle of parity is relevant in this consideration in the circumstances. The parity principle was stated by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 (at 301-303) as follows: ... 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 me [12]. 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 [13]. 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 The Queen [14], 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" [15]. 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. ... 34In Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 (at 341), the Full Bench referred to the applicable principles in a consideration as to penalty, which were best stated by Mason J in Lowe v R (1984) 154 CLR 606 (at 610) as follows: Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 35Given the circumstances outlined, and the fact Mr Coulbeck was acting in the capacity of manager, I find he carries a heavier liability for the offence than does Ms Lam, who was generally involved in the finances of the corporation. Mr Coulbeck was overseeing the worksite, he knew the machine was unguarded, and he failed to insure Mr Prasad was properly trained, instructed and supervised. He did initiate a safe work procedure but it allowed for the cutting element on a machine to be exposed. 36Mr Coulbeck reveals he, as an undischarged bankrupt, carries a large debt to his father for a loan to enter the business and has significant maintenance and child care commitments. He has revealed he had some relief when assets of the business were sold but he still has considerable debts as well as commitments. 37Mr Coulbeck is a man of good character. He was financially cautious when he went into the business, working in it before purchase to assess its value. However, it did not trade well. He bought new machinery to try to boost the trade. Mr Coulbeck has shown remorse and contrition. While it is not of persuasive value, the impact the incident has had on him, both emotionally and financially, has been dramatic. The staff (many related to Mr Prasad) were badly affected. The business failed after the incident although clearly it was already struggling. Mr Coulbeck, in setting up the system of work, had given safety a consideration but he failed to recognise the basic risk created by the removal of the guard. Further, his was not generally a sophisticated work safety procedure. 38Ms Lam advanced Mr Coulbeck significant monies over time, most of which are lost or unrecoverable. However, she also was given some relief from debt with the sale of assets of the corporation. She still carries debt of approximately $100,000. I accept she has been quite distressed by the incident and has expressed her remorse and contrition. She has made inquiries as to Mr Prasad's circumstances. 39I accept neither defendant is likely to re-offend. 40Both defendants ask consideration under s 10 and s 10A of the Crimes (Sentencing Procedure) Act 1999 and s 6 of the Fines Act 1996. The basis for this submission relates to each defendant's poor financial circumstances, their health, contrition, remorse and early pleas of guilty. 41Section 10 relevantly states: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. In considering such a submission regard must be had to factors in s 10(3): (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 42In Inspector Jennifer Short v The Crown in the Right of the State of New South Wales (NSW Police) [2007] NSWIRComm 138, Boland J (President of the Industrial Relations Commission of New South Wales) considered the application of s 10 of the Crimes (Sentencing Procedure) Act 1999. This case concerned the Redfern riots in which 42 police officers sustained injuries. In considering its application, Boland J stated at [47]: Where the risk to health and safety was known, where the breach had potentially very serious consequences for the health and safety of employees, where the risk was easily preventable, where the main factor to be considered in determining an appropriate penalty to be imposed is the objective seriousness of the offence, and where the subjective factors do not outweigh the objective considerations, there is no scope, in my opinion, to apply s 10. 43Reliance is also placed by both defendants on the reasoning in Inspector Cooper v Kwik-Seal Pty Ltd & Anor [2006] NSWIRComm 48 at [43], [45] and [51] and Inspector Mulder v Girotto Precast Pty Ltd [2008] NSWIRComm 94 where a s 10 order was given in the case of a fatality. 44It has also been held that the s 10 discretion is to be reserved for extraordinary and highly exceptional circumstances ( WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 at [45]). 45Counsel for the prosecution submitted, relying on the above authorities, that the financial means of the defendant is not a relevant consideration in the determination of whether discretion to exercise the sentencing option of s 10 of the Crimes (Sentencing Procedure) Act 1999 is to be utilised. The relevant consideration is whether the objective seriousness of the offence proven warrants the imposition of penalty other than a nominal one. Any other approach, the prosecution submitted, would render nugatory the effect of s 6 of the Fines Act 1996 which provides a court with an ability to reduce the fine that was otherwise appropriate in light of the objective seriousness of the offence, having regard to the financial means of the defendant. I accept that under s 10 the subjective elements put before the Court cannot displace the weight which must be given to the objective seriousness of the offences. However, given provisions under s 10(3)(d), the discretion given to the Court is broad. It may well be in weighing up the individual's circumstances including personal health, whether the offence is of a trivial nature and any extenuating circumstance the financial circumstance could be an element of the consideration of a s 10 order. However, I do not accept any of the above circumstances, on the evidence, outweighs the seriousness of these offences. 46Considerable medical evidence has been placed before the Court for its consideration under s 10 related to the mental condition of both defendants. While I accept the offences had serious ramifications on not only their business but on each defendant's health, and I accept part of the cause of this decline in health was concern, contrition and remorse for the offence, I cannot accept the circumstance in which the offence was committed allows for any extenuating circumstance which would attract a s 10 order. The offence was not of a trivial nature. It was known the guard had been removed. The defendants were as directors the controlling mind of the corporation and as well working on site. 47In the alternative to a s 10 order, given their financial circumstances, both defendants ask for consideration under s 10A of the Crimes (Sentencing Procedure) Act 1999: 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty. ... This provision was inserted into the Act in 2006. In R v Wilhelm [2010] NSWSC 378 at [36], Howie J in the Supreme Court of New South Wales described s 10A as being: a section that has recently been added to the armoury of the sentencing court in such a case where the Court indicates that the charge was deserving of a conviction but one where it is deserving of no other punishment in the circumstances of the particular case. 48I cannot accept there should be an order for each defendant under s 10A given the basic breach to safety. I do not accept that the plea of guilty leading to a conviction will be sufficient penalty for such a serious offence. The fact that each defendant has limited means establishes no reason for a s10A order. These offences revealed a disregard for the basic principles necessary for safe working, namely, ensuring the dangerous parts of machinery are guarded. I reject the proposition that either defendant has established that because of their health and poor financial circumstances that it is sufficient to conclude in taking a plea of guilty and a conviction they are deserving of no other penalty. 49In the alternative to the application for a s 10 or s 10A order, an application is brought under s 6 of the Fines Act 1996 . The Court takes into account a consideration of the defendants' means to pay under s 6. Section 6 is in the following terms: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. The evidentiary onus on establishing matters in mitigation, including the financial situation, lies with each defendant. The onus is on the balance of probabilities. The Court must be satisfied as to the truth of such evidence and its relevance to the fixing of penalty ( McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353). 50Mr Coulbeck was made bankrupt on 10 December 2010. He remains undischarged from the bankruptcy. The impact of the imposition of a monetary penalty on a bankrupt was considered comprehensively by Staff J in Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20. His Honour discussed a number of applicable authorities then posed the question at [47]: This raises a question as to whether a fine or monetary penalty if imposed by the Court becomes a provable debt in bankruptcy. If so, then the burden of the fine would be borne not by ..., but by his creditors, whose dividend would thereby diminish. If it were not a provable debt in bankruptcy, then .. would continue to be personally liable for any such fine. Staff J then concluded that a fine imposed by this Court for a breach of the Act is not provable in bankruptcy and would therefore not deprive the creditors of the bankrupt of any access to funds (see [53]). Accordingly he determined justice required the application of a penalty and his Honour imposed a penalty. Marks J in WorkCover Authority of NSW v Missingham [2007] NSWIRComm 44 agreed with the reasoning and conclusions of Staff J. The appropriate approach to sentencing an individual who was a bankrupt has also been discussed by Haylen J in Inspector Patton v Hall and Quinn [2010] NSWIRComm 6 at [36] - [37]). The general law related to a consideration of penalty under occupational health and safety legislation is therefore applicable. 51The Court, in adopting the reasoning in the above authorities, is therefore entitled to take Mr Coulbeck's full financial circumstances into consideration for the purpose of penalty (see s 6 of the Fines Act). He therefore continues to face liability and a possible penalty for a breach of the Occupational Health and Safety Act. It is the level of penalty that is affected in this consideration. Mr Coulbeck is at present in bankruptcy. Ms Lam has not been made bankrupt but I accept she still has considerable debt so the level of penalty is also an issue in her circumstances. 52I am satisfied I have before me sufficient, cogent evidence as to each defendant's current means to pay. I accept they both carry considerable debt from this failed business venture. The Court also has regard to the facility provided by the WorkCover Authority of New South Wales to enter into an arrangement for a payment of any penalty imposed by reasonable means. 53Section 6 of the Fines Act allows consideration of the question of costs when considering a defendant's means particularly if that person is a bankrupt. The usual order in prosecutions where the defendants plead guilty is the defendant carries the burden of a costs order. The prosecution has prepared a bill of costs and disbursements in the sum of $15,421.37. 54I accept both defendants have now succeeded in obtaining good work. Both still have significant debts and are paying them off. Mr Coulbeck has serious family financial commitments. He at present has not obtained a well paying position but he had good managerial skills for which I am sure he will eventually obtain appropriate income. Ms Lam has a good income. Both are hard working members of our community who have suffered financially from a bad business venture but both have also committed a serious breach of the Occupational Health and Safety Act as directors and controlling minds of the corporation. I will allow in mitigation a consideration of each defendant's separate financial circumstance but note each penalty must reflect the seriousness of the offences. 55I find each defendant guilty as charged. Orders 56The Court makes the following orders: 1. In IRC 1677 of 2009, I find the defendant, Mark David Coulbeck, guilty of the offence as charged. 2. In IRC 1677 of 2009, the defendant is fined in the sum of $7,000 with a moiety to WorkCover Authority of New South Wales. 3. In IRC 1678 of 2009, I find the defendant, Ai Chau Lam, guilty of the offence as charged. 4. In IRC 1678 of 2009, the defendant is fined in the sum of $3,500 with a moiety to WorkCover Authority of New South Wales. 5. I order the costs of the prosecutor shall be shared equally between the defendants. Each defendant will therefore pay as costs to the prosecutor the further sum of $7,710.68. 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: 28 April 2011