Industrial Relations Commission New South Wales Medium Neutral Citation: Regan v Gujarat NRE Coking Coal Limited [2011] NSWIRComm 71 Hearing dates: 1 April 2011 Decision date: 26 May 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC998 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $180,000 with a moiety to the prosecutor. 3. The defendant to pay the 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 - no safe work method procedure in place - known risk of unpredictable machinery movement - company on formal notice of no safe method in place for task - company on notice employees in "no go" zone when machinery moving - foreseeability a factor - gravity of the potential risk - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - contrition expressed - concrete expression of remorse an element in mitigation of penalty - evidence of ongoing corporate commitment to safe working - penalty Legislation Cited: Occupational Health and Safety Act 2000 (NSW) s 8(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A Coal Mine Health and Safety Act 2002 (NSW) s 150 Cases Cited: Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Elyard v R [2006] NSWCCA 43 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 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 Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRC61; (2005) 147 IR 117 R v Gallagher (1991) 23 NSWLR 220 R v Olbrich (1999) 199 CLR 270 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 Takiari v R [2009] NSWCCA 84 Tyler v Sydney Electricity (1999) 47 IR 1 Veen v The Queen (No.2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; 140 A Crim R 184; 196 ALR 451; (2003) 212 CLR 629 Winchester v Regina (1992) 58 ACrimR 345 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm92; (2009) 186 IR 125 Category: Principal judgment Parties: Robert William Regan (Prosecutor) Gujarat NRE Coking Coal Limited (formerly known as Gujarat NRE Minerals Limited and India NRE Minerals Limited) (Defendant) Representation: M P Cahill of Counsel (Prosecutor) D A Buchanan SC with D Jordan of Counsel (Defendant) Crown Solicitor for NSW (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): Matter IRC 998 of 2010 Judgment 1This prosecution is brought by Robert William Regan of the Department of Industry and Investment of New South Wales against Gujarat NRE Coking Coal Limited (formerly known as Gujarat NRE Minerals Limited and India NRE Minerals 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 dated 25 January 2011. 2It is alleged the defendant, on 23 September 2008 at No 1 Colliery at Russell Vale in the State of New South Wales, contravened s 8(1) of the Act in that, by its acts or omissions, it failed to: ensure the health and safety at work of all its employees, and in particular, Nathan Lakeman and Jason Fife, contrary to section 8(1) of the Occupational Health and Safety Act, 2000. In particular: (1)The defendant should have provided and/or maintained and failed to provide and/or maintain a system of work with respect to the flitting process of a continuous miner at the NRE No. 1 Colliery ["the mine"] that was safe and without risks to the health and safety of all of its employees and, in particular, Mr Lakeman and Mr Fife, in that: (a)The defendant should have required and failed to require that its employees remain outside a No Go Zone surrounding the machine unless the machine was isolated so that it was unable to move. (b)The defendant should have required and failed to require the machine operator to check his/her environment before any work was started with a view to ensuring that the working and traversing area was cleared of any obstacles. (2)The defendant should have ensured and failed to ensure that plant provided for use by its employees at work, namely the Dash 3 Remote control Narrow Head Continuous Miner ["the Dash 3 CM"] in use at the mine, were safe and without risk to health when properly used in that: (a)The defendant should have prevented and failed to prevent the Dash 3 CM from being operated without the tilt switches, incorporated by the manufacturer in the remote control transmitters used to control the operations of the Dash 3 CM, being enabled. (3)The defendant should have controlled and failed to control the risk of employees, including Mr Lakeman and Mr Fife, being struck by or crushed against a rib of the mine during the flitting process of a continuous miner identified by Inspector Franz Robert Charles Myatt [known as "Bob Myatt"], a Mine Safety Officer, in a statutory notice entitled "NSW Department of Primary Industries - Mine Safety Operations Government Official's Advice" ["the notice"] issued on 2 September, 2008 pursuant to section 150 of the Coal Mine Health and Safety Act 2002, a copy of which was delivered to the Mine Manager, Mr Grant Case, that day, in that: (a)The defendant failed to review its work procedures for the flitting process of a continuous miner with a view to eliminating or controlling the risk identified in the notice, when such a review should have been undertaken following receipt of the notice. (b)The defendant should have consulted and failed to consult with all its employees regarding the risk identified in the notice, and should have ensured and failed to ensure that the risk identified in the notice was brought to the attention of the Occupational Health and Safety Committee. (4)As a result of the abovementioned failures, Mr Lakeman and Mr Fife were placed at risk of being struck by and/or crushed against a rib by a continuous miner. (5)Further, as a result of the abovementioned failures, Mr Lakeman was struck by and crushed against a rib by a continuous miner and sustained serious injury. 3The defendant pleads guilty to the charge. 4Mr M P Cahill, of counsel, appeared for the prosecutor and Mr D A Buchanan SC with Mr D Jordan, of counsel, appeared for the defendant. The prosecutor relied upon an amended Application for Order, an agreed Statement of Facts with relevant photographic evidence and the industrial record of the corporation. 5The defendant relied upon an affidavit of Rhys Carl Brett, Operations Manager at Gujarat NRE Coking Coal Limited sworn 28 March 2011 with attached documentation addressing the system of work in place at the time of the incident and the revised procedures to eliminate the identified risk. The affidavit further expressed the contrition and an expression of remorse by the defendant. 6There was an Agreed Statement of Facts which relevantly reads: The Defendant 4. At all material times the defendant was the owner, occupier and operator of the No 1 Colliery at Russell Vale in the State of New South Wales ("the mine"). 5. At all material times, the mine was a "coal workplace" within the meaning of the OHS Act. The Risk 6. The risk to health and safety to which the defendant's employees were exposed in the course of their employment was: Employees of the defendant, namely Mr Lakeman and Mr Fife, were at risk of being struck by and/or crushed against a rib by a continuous miner whilst being in close proximity to the machine during the preparation for flitting, and the flitting of the machine ("the flitting process"). ("Flitting" is the movement of a continuous miner out or into a work area, including travel between such areas. Preparation of the machine for flitting includes handling the cable attached to the continuous miner in preparation for flitting.) The Crew 7. On 22 September 2008, the night shift at the mine commenced work at approximately 9.30pm. 8. The night shift crew assigned to coal extraction operations in and around "A" heading in the 04 Panel at the mine consisted of 10 workers. In particular, a team of three was working on a continuous miner in the "A" heading at the time of the subject incident. Those three were - Jason Fife - "miner": At all material times, Mr Fife was employed by the defendant. Prior to commencing employment with the defendant, Mr Fife was employed by Walter Mining, a contracting company, and he had been placed by that company, as contract labour, at the mine for about 3.5 months. At or about the time of the subject incident, Mr Fife was also appointed by the defendant as a "trainee" miner operator/driver. On the day of the subject incident Mr Fife was assigned to drive the second shuttle-car servicing the continuous miner. However, at the time of the subject incident Mr Fife was assisting Mr Lakeman in preparing the continuous miner to be "flitted". Michael Franklin - "operator": At all material times, Mr Franklin was employed by the defendant. As at the date of the subject incident Mr Franklin was working as a "trainee" continuous miner operator pursuant to a permit issued by the mine manager, Grant Case. Mr Franklin commenced work at the subject mine approximately 3 months prior to the incident and was issued, by the defendant (i.e. the mine manager), with his "Learners (sic) Permit to Operate an (sic) Dash 3 Remote C/M" on 24 July 2008. At the time of the incident Mr Franklin was operating the subject continuous miner - under Mr Lakeman's supervision. Nathan Lakeman - miner driver. At all material times, Mr L akeman was the "ticketed" miner driver attached to the subject crew. Mr Lakeman had been employed with the defendant for approximately 12 months and prior to that he worked at the subject mine as contract labour. Mr Lakeman was appointed (i.e. issued with his miner driver's "ticket" by the mine manager) as a "CM Dash 3 Remote Operator" by the then mine manager, Paul Coxhead, on 19 December 2007. The Incident 9. In the course of the subject shift, but prior to the subject incident, Mr Franklin, in his capacity as a "learner operator", was cutting coal with a Dash 3 narrow head continuous miner in a development heading, called "A" heading, within the 04 Panel at the Colliery. The continuous miner was operated by the operator standing or moving in the vicinity of the machine, using a remote control box which was hanging at about waist level from his neck. Having completed a "plunge" (i.e. a "cutting cycle" with the miner), the next step in the mining process in "A" heading was a "roof bolting cycle". As the Dash 3 continuous miner is not fitted with bolting rigs, the continuous miner had to be withdrawn, or pulled back, from the face in "A" heading to enable the bolting crew to move the Fletcher Bolter, a machine designed to perform roof bolting, into place in the heading for the purpose of inserting roof bolts into the unsupported roof created by the plunge that had just been completed. 10. The movement of the continuous miner out of "A" heading was to take place in two parts: first, extraction of the continuous miner from the immediate vicinity, under unsupported (i.e. unbolted) roof to an area in "A" heading where the machine was located under supported roof; and secondly, once the machine had been prepared for "flitting", movement of the miner outbye in "A" heading - possibly to another heading within the 04 Panel to commence a further cutting cycle. The second movement of the continuous miner outbye, or to another worksite, is called a "flit" or "flitting" the continuous miner. 11. The continuous miner is an articulated, self-propelled,track-mounted, coal cutting and loading machine weighing approximately 61 tonnes. The continuous miner moves on tracks that are separately powered and individually controlled. As a consequence, the continuous miner can: advance and reverse in a straight line along its long axis; turn on the pivot point of its long axis (slew); advance and reverse at an angle to its long axis after slewing. However, the continuous miner cannot move sideways to a position parallel to its long axis. 12. The continuous miner is powered via an armoured electrical cable which runs from a "gate end box" (an electrical distribution centre) located some distance outbye the cutting face. There is no facility for the electrical cable attached to the continuous miner to be retracted mechanically, as the machine reverses, or to release the cable as the machine advances. As a consequence, the cable is handled manually as the machine retreats and advances within the mine. 13. Prior to the subject incident, two alternative procedures were adopted at the mine for the manual handling of the continuous miner cable when the machine was being flitted in reverse: in the first procedure, the cable was loaded, using a "figure 8" configuration, onto the rear of the machine as it retreated; alternatively, in the second procedure, the cable was tied to the side of the machine and the balance looped off over the head of the machine; the machine would then drag the cable out as it retreated. 14. Prior to the subject incident, Mr Lakeman was familiar with and had used both procedures whilst working at the mine. 15. At the time of the incident, the crews operating continuous miners in the 04 panel ".... the majority of the time ... were just running it straight over the head ." Running the cable over the head of the machine and using the machine to drag the cable out was regarded as a faster process than loading the cable onto the rear of the machine and did not involve physical, manhandling of the cable onto the tail of the machine. 16. On 23 September 2008, prior to the subject incident, Mr Franklin reversed the continuous miner away from the face until the machine was under supported roof in "A" heading and there was enough slack cable to enable the cable to be tied off in hooks provided for that purpose on the side of the machine and, then, looped over the cutting head of the machine. 17. Immediately prior to the incident, both Mr Fife and Mr Lakeman positioned themselves in the heading so that they were standing between the side of the continuous miner and the rib [i.e. the wall of the mine roadway in which the continuous miner was being operated]. Mr Franklin then "trammed" the machine (i.e. reversed back) a short distance from the face, so that - the cable could be "tied off" to the hooks provided for that purpose on the side of the machine, and then the cable could be placed over the cutting head of the machine. When Mr Franklin trammed the machine back from the face, the machine moved past Mr Lakeman and Mr Fife. However, the machine was not trammed back so far that the cutting head moved past Mr Lakeman and Mr Fife. 18. This mode of operation, or work practice, was commonly followed at the mine prior to the incident: This was how Mr Franklin and Mr Fife were trained to do this job. Prior to the incident, whilst they working as "cable hands" on the continuous miner and, in particular, when they were "tying off" the cable to the continuous miner in preparation for a flit, workers routinely positioned themselves at the side of the heading whilst the operator of the continuous miner "trammed" the machine past them, including the head of the machine. 19. When the continuous miner had been "trammed" back far enough in the heading to enable the cable to be thrown over the cutting head of the machine, Mr Franklin stopped the machine but did not isolate so that it could not move. Mr Fife and Mr Lakeman worked along the side of the machine, tying the cable off on the hooks provided on the side of the machine. Then they walked past the cutting head. Mr Fife and Mr Lakeman then looped the cable over the cutting head of the machine. 20. "Isolation of the machine so it could not move" requires the operator of the machine to: switch off the power to the hydraulic pump of the machine by operating the relevant switch on the remote control; switch the main circuit breaker, which is located on the machine, to the "off" position; and "lock" the main circuit breaker in the "off" position by placing his "lock out" tag on the main circuit breaker. 21. The remote control system of the machine also included a control feature which automatically disengaged the tram mode of the machine if, once the remote control is operational, the tramming toggles were not manipulated by the operator for ten seconds or more. Once that had happened, tramming mode was re-engaged by operating the relevant switch (i.e. the Tram 2-3 switch) on the remote control. 22. As a consequence of the fact that the machine was not isolated in the manner described above, if within ten seconds of the machine stopping Mr Franklin had touched the tramming controls on the remote control unit, the machine would have moved. This could have happened whilst Mr Fife and Mr Lakeman worked along the side of the machine and then walked past the head of the machine. 23. After 10 seconds of the machine stopping, if the tramming controls were not manipulated, the tramming mode would have been disengaged and activation of two separate toggles on the remote control would have been required before the machine would have moved (i.e. activation of the tramming mode by manipulation of the Tram 2-3 switch for 0.5 of a second followed by manipulation of one of the tramming toggles). 24. Also, as a consequence of the fact that the machine was not isolated so that it was unable to move, if Mr Fife and Mr Lakeman were throwing the cable over the cutting head of the continuous miner within ten seconds of the machine stopping and if Mr Franklin had touched the tramming controls on the remote control unit, the machine would have moved. After 10 seconds, the machine would have timed out of tramming mode and a "two toggle" activation on the remote control would have been required before the machine would have moved (i.e. activation of the Tram 2-3 switch and one of the tramming toggles). 25. Prior to the incident, on 2 September 2008, Inspector Myatt, whilst underground at the mine performing a safety audit, observed a crew operating a continuous miner in a manner consistent with the work practices described above in that Inspector Myatt observed the Dash 3 CM (CMD010) being flitted out of G29 Heading with the continuous miner driver standing at the rear of the machine, operating the controls remotely, whilst two operators were standing just behind the right hand side "pineapple" or cutting head (i.e. standing between the right-hand side of the miner and the side wall of the road in which it was being operated - just behind the cutting head) "loading" the cable onto the continuous miner. 26. On 2 September 2008, Inspector Myatt issued a "Government Officials (sic) Advice" pursuant to s.150 of the Coal Mine Health & Safety Act , 2002 (NSW) and delivered a copy of that Notice to the Mine Manager, Mr Case. Inspector Myatt stated in the Notice that: "This method of flitting is dangerous & procedure needs review. Review procedure & notify DTI of new procedure. Ensure communication to all face crews of the above." 27. The defendant did not cause a detailed investigation to be undertaken with respect to the concerns expressed by Inspector Myatt in the above mentioned Notice. 28. The defendant did not cause a review of the flitting procedure(s) in operation to be undertaken in response to the Notice. 29. The defendant took no steps to communicate the Inspector's concerns to "all face crew" working underground at the mine beyond placing the Notice on a notice board at the mine. 30. On the evening of the subject incident, Mr Lakeman was neither struck by, nor crushed against the rib, by the remote control continuous miner whilst in the process of tying off the cable and/or walking forward past the head. Rather, with Mr Fife, Mr Lakeman completed the task of securing the cable to the machine and had also looped the cable over the cutting head of the machine. 31. Following the completion of the tasks outlined above, both Mr Fife and Mr Lakeman had "stepped back" from the cutting head towards the face - ie, away from and inbye the cutting head - and then, signaled with a cap lamp, to Mr Franklin that the subject machine was ready to flit. 32. Located outbye the continuous miner, Mr Franklin then commenced to tram the machine back into the heading. 33. As he was doing this, Mr Franklin was walking backwards in the heading whilst at the same time operating the controls on the remote control box for the machine. During this process (i.e. whilst walking backwards into the heading remote driving the machine), Mr Franklin tripped on some 3m x 900 mm vent tubing that was lying on the ground in the middle of the heading. 34. Mr Franklin had earlier placed the tube beside the right hand rib and supported it with rocks to prevent it moving . 35. When Mr Franklin tripped on the tube, he lost his footing and fell. At the time he tripped, his fingers were on the two tramming levers in the reverse position. Mr Franklin regained his footing. During this time, the continuous miner twice slewed to the right. 36. At the same time as Mr Franklin lost his footing and started to fall, Mr Lakeman stepped forward from the right-hand front of the head of the machine towards the right-hand side of the head. 37. As a result of the coincidence between the miner slewing to the right and Mr Lakeman stepping forward to the right, Mr Lakeman was positioned between the head of the machine and the right-hand rib when the machine slewed into the rib. 38. When the continuous miner slewed into the right-hand rib, Mr Lakeman was crushed between the head of the machine and the rib. Re-powering the continuous miner 39. On 2 October 2008, the continuous miner was re-powered under Departmental supervision. At the time, the floor of the heading underneath the machine was observed to be uneven, with a higher level on the left hand side than on the right. After re-powering the machine, the operator lifted the head and applied even pressure to the tramming controls so as to move the machine backwards. However, the machine slewed to the right. It appeared that one track was sitting high where it did not have much traction and one track was sitting flat on the floor. In the opinion of an experienced continuous miner operator who observed the repowering of the machine (Arthur Kerr), the machine slewed right on re-powering because the right hand track had more traction. 40. Following recovery of the machine, the continuous miner was subjected to testing by the manufacturer, Bucyrus. Subsequent reporting of the tests and inspections conducted by Bucyrus disclosed no defects in the machine which would have caused it to slew in the manner described by the workers present at the time of the subject incident. The defendant's "system" prior to the subject incident 41. At the time of the subject incident, operation of remote control machinery at the mine was subject to the defendant's "Mine Safety Management Plan" - "Remote Control Machinery Management Plan MSMP - NRE - 23 - Revision Number: 1 Date 13 March 2007" ("the Remote Control Machinery Management Plan "). 42. The Remote Control Machinery Management Plan highlighted the risks associated with the operation of remote control mining equipment - including the risks associated with unpremeditated machine movement - and the need to develop controls in respect of those risks. 43. The Remote Control Machinery Management Plan was cross referenced to two (2) Risk Assessment documents: Risk assessment Bellambi West Colliery, Joy 14CM 15 March 1998; and Risk assessment on Eimco Dash 3 Remote Control Miner at BellPac No 1 Colliery March 2004. 44. The Remote Control Machinery Management Plan did not provide, in detail, for the procedures to be adopted either in the mining operations of continuous miners, or when the machines are being flitted. 45. Nonetheless, the Remote Control Machinery Management Plan did provide some guidance with respect to the flitting of remote control continuous miners. In the "Definitions" section, the following appeared: "Area 1: In front of CM cutter head No persons to be in front of miner when cutting. Persons can be in front of heads while flitting - taking into account rate of movement, gradient, confines and roadway and roof/rib conditions. ... Control Zone This is the area within two (2) metres of all extremities of Remote Controlled Continuous Miner. If the RC Operator Tag is NOT located on the tail of the RC Continuous Miner then a "Control" zone must be assumed to exist. ... No Go Zone A zone where no person may enter while the Remote Control Continuous Miner is in use. No Standing Zone This zone is normally located adjacent to the platforms of the RC Continuous Miner or within the swing arc pinch point of the boom to the rib. " 46. The Remote Control Machinery Management Plan included diagrams showing "No Entry", "No Standing" and "Control" zones both generally and during flitting. The diagrams showed the middle of the sides of the machine to be a control zone. Apart from the definition set out above, the plan did not incorporate any diagrammatic or other more specific definition of "No Go" zones. 47. Under the heading "Pillar Extraction ... Continuous Miner Zones" , the Remote Control Machinery Management Plan said: "Area 1: In front of CM cutter head Persons may be in front of the cutting heads while flitting if the following has occurred: 1. All RC equipment operators are informed of persons working in front of cutting head and the reasons for being in front of the head. 2. The reasons specified above cannot be done without being in front of the cutting head 3. The cutting heads are effectively isolated as per MSMP 011 Isolation of Energy System 4. All persons must take into account rate of movement, gradient, confines, and roadway and roof/rib conditions while flitting." Area 2: Pivot Point Zone The Pivot Point Zone is (sic) located mid way along either side of the miner, is a safe location while cutting or flitting. ..." The Remote Control Machinery Management Plan also incorporated a diagram entitled "NRE No.1 Colliery Pillar Extraction Go Zones Track Pivot Point Miner" states with respect to "Area 2": "Pivot Point, standing near machine in the pivot point zone, may need to stand here for testing purposes, grading or cutting a breakaway but do not stand here on a regular basis." 48. Under the heading "Remote Control Operation of the Continuous Miner", the Remote Control Machinery Management Plan included the following: "7. If any personnel are required to enter the "No Go" Zone, the Miner Driver shall stop the Continuous Miner before the personnel enter the No Go Zone and comply with the requirements of section 3-ISOLATION." But, as noted above, apart from the definition reproduced in paragraph 45 above, the plan did not incorporate any more specific or diagrammatic definition of a "No Go Zone". 49. The Remote Control Machinery Management Plan provided that workers could be positioned in "front" of the cutting head(s) of the machine subject to listed conditions. The conditions required that the task to be performed whilst the workers were in front of the cutting head was one that "... cannot be done without being in front of the cutting head." 50. No such tasks were identified in the Remote Control Machinery Management Plan. 51. After the subject incident, Mr Mallon, the employee nominated by the company as the mentor/assessor of its trainee remote control continuous miner operators, stated in his record of interview that: "You don't need them out the front no; why they're there I've no idea, once your cables over the head there's really nothing that can, it's just dragging it, that's all. I'd have no idea why they'd be out there." 52. The Remote Control Machinery Management Plan provided for the Defendant to undertake the following tasks : Document, number and file risk assessment findings. Consider the introduction of electronic barriers between personnel and machine. Determine safe working practices by risk assessment. Develop procedures for moving machines under remote control in mine which considers other activities. Develop Safe Working Procedure for remote controlled equipment addressing matters prescribed matters in MDG 5002 Appendices F & H. Provide plans and diagrams, which designate safe work locations and control zones. Document procedure and crew positions/locations/duties during machine flitting operations. Develop protocol for use of remote controlled equipment defining work tasks and parameters to be carried out using RC equipment. Establish review, auditing and feedback procedures for remote control management system. Develop procedure for general access to "No Go" areas. Develop operational procedures based on risk assessment to address normal operation recovery of machine under abnormal or breakdown conditions. Review operational and maintenance procedures to confirm employees will not be exposed to hazards and inadvertent movement of machine. Determine "Shadow" zones where personnel may locate safe from inadvertent machine movement. 53. Prior to the subject incident the defendant had not carried out or caused to be carried out: any review of the operational procedures being followed underground at the mine - either in the cutting of coal, or the movement/flitting of machinery; any risk assessment(s) with respect to any of the continuous miners in use at the mine prior to the subject incident; any consideration of the introduction of electronic barriers between personnel and machine - either in the form of proximity devices or with respect to the activation and use of the tilt switches incorporated by the manufacturer in the remote control transmitters used to control the miners; documentation of the procedure and crew positions/locations/duties to be applied during machine flitting operations; or the provision of a documented SWP to machine crews either with respect to cutting of coal, or the movement/flitting of machinery. 54. Prior to the subject incident the defendant did not provide machine operators, trainee machine operators or machine crew with a copy of the Remote Control Machinery Management Plan, the manufacturer's Miner Training Manual for Machine Operation for the continuous miner, and/or manufacturer's Training Manual Safety Module for the continuous miner. 55. The company provided "on the job" or "buddy" training in which "experienced" workers provided less experienced/new workers with "information" and "training" regarding safe operations of the continuous miners and other equipment. 56. The defendant's training and information contained a number of inconsistent directions concerning areas that employees were not to enter unless the continuous miner was isolated in the manner described in paragraph 21 above. 57. For example, the Remote Control Machinery Management Plan defined "Go Zones" as: " Any area away from the face area ." The plan also provided a different definition of "Go Zones" with respect to the operation of continuous miners. The "Go Zones" were defined both in words and pictographically and included a "Go Zone" which was described as "Area 2: Pivot Point Zone". In the body of the document "Area 2: Pivot Point Zone" was described in the following terms: " The Pivot Point Zone is located mid way along either side of the miner, is a safe location while cutting or flitting. It is an acceptable (but not preferred) location for operators while testing, grading, or cutting a breakaway." The paragraph in the diagram which addressed "Area 2: Pivot Point Zone" provided: " Pivot point, standing zone near machine in pivot point zone, may need to stand here for testing purposes, grading or cutting breakaway but do not stand here on a regular basis." 58. Similarly, the Remote Control Machinery Management Plan defined the "Control Zone" with respect to continuous miners: " This is the area within two (2) metres of all extremities of Remote Controlled Continuous Miner. If the RC Operator Tag is NOT located on the tail of the RC Continuous Miner then a "Control" zone must be assumed to exist." 59. The Remote Control Machinery Management Plan also defined "No Standing Zone": " This is the zone normally located adjacent to the platforms of the RC continuous miner or within the swing arc pinch point of the boom to the rib." 60. Although Remote Control Machinery Management the Plan did not say this, this definition did not apply to narrow head remote controlled continuous miners. It applied to wide head remote controlled continuous miners with bolting platforms. 61. Further, both the "Control Zone" and the "No Standing Zone" were also defined pictographically in the Plan in five (5) diagrams attached to the Plan. 62. The "No Go Zone" was defined in the Remote Control Machinery Management Plan as: " A zone where no person may enter while the Remote Control Continuous Miner is in use." 63. The term was not otherwise defined; nor was it represented pictographically in the Remote Control Machinery Management Plan. 64. The pictographs appended to the Remote Control Machinery Management Plan distinguished between " No Standing Zones " and " No Entry Zones ". According to the pictograph for " Remote Control Zones - Straight Flitting ", the area two metres directly in front of the cutting head(s) of a continuous miner being "straight" flitted [in either direction] was a " No Standing Zone " - not a " No Entry Zone " under the Plan. 65. Since the incident, the defendant, as part of its review of the relevant work practices, has prohibited its employees from entering: the area between head of the continuous miner and the face in production headings; and otherwise, an exclusion zone or No Go Zone extending from 2 metres in front of the cutting head to 2 metres beyond the tail of the machine; unless the machine has been isolated in the manner described in paragraph 21 above. 66. The following were known to management at the mine prior to the subject incident: In about late April/early May 2007 the defendant experienced two (2) incidents involving "near misses" in which "an employee" was placed at risk of injury whilst a continuous miner was being moved. An NRE No 1 Colliery Risk Profile and Major Controls to Manage the Identified Risk NRE - 002 Revision Number: 2 dated: 22 nd May 2007, undertaken at the mine, identified " flitting" of remote controlled machines as a source of risk, including a risk of "unplanned machine movements" and/or "collision between ... machines and people" . (See for example: page 24 - "Development - conventional unit, cut and flit"; and page 43 "Roadway Recovery Unit".) The risk profile assessed the risk ranking as "High" and required the following response: "STOP! Situation requires immediate senior management intervention to reduce risk to a lower level. This may, dependant on the criticality of the risk, require the involvement of consultancy services and/or external expertise. Requires the development of action plans to reduce the risk to an acceptable level." The defendant did not carry out a review of the subject operations and/or the relevant work practices and no "action plan" was developed by the defendant prior to the subject incident. 67. Mr Mallon, the defendant's principal assessor of continuous miner drivers, indicated that prior to the subject incident, he adopted the following work practices when preparing to flit a continuous miner: " .... nine times out of ten I'd throw it over the head myself, I've got the remote, it, it can't move. That's way I would do it, that's the way I did do it." I had the remote, no I'd throw it over the head, that's the way I would do it if I was the driver on that panel I'd be doing that. I had the remote swung over my shoulder yeah. "The machines off, I've got the remote, I'm usually the closest anyway and there's not much room up the side, it's just easier for me to do it than have anyone else run up there." 68. Mr Lakeman, at the time of his assessment as competent to operate a Dash 3 CM provided the following answers in his written assessment (both apparently being ticked as correct): "10. Describe briefly the safe standing zones for operating the Dash 3 miner? Sides of miner also along sides of the tail. 11. Describe briefly the no go zones or unsafe standing zones for operating a Dash 3 miner? Sides of miner where it can swing an pin a person's to the rib (sic)." 69. Prior to the incident, whilst working as "cable hands" on the continuous miner and, in particular, when they were "tying off" the cable to the continuous miner in preparation for a flit, workers routinely positioned themselves at the side of the heading whilst the operator of the continuous miner "trammed" the machine past them, including, at least on one occasion, the head of the machine. 70. Prior to the incident, because it had no SWP for flitting of continuous miners, the defendant provided no training in such an SWP to its employees. 71. Prior to the incident, the defendant did not provide Mr Franklin and/or Mr Lakeman with a copy(ies) of the defendant's safe working documents relevant to training an operator in the operation of the continuous miner including: i. MSMP 023 Remote Control Machinery Management Plan; and/or ii. MSMP 028 Training and Competency Management Plan. Changes introduced by the defendant following the subject incident 72. Prior to the incident the defendant had not carried out a specific risk assessment with respect to the flitting of the continuous miner and had not developed a specific, detailed procedure for that task and/or documented such a procedure. 73. In the period between 25 and 27 September, 2008, a risk assessment, entitled "Risk Assessment on Repowering the Dash 3 Continuous Miner (25M3) in 04 Panel" was undertaken by the defendant and a Safe Work Procedure entitled "Process - Repowering the Dash 3 (25M3) Continuous Miner" was developed with respect to the repowering of the continuous miner. 74. The SWP for repowering the machine was finalised at a meeting between the defendant and the Inspectorate on 1 October, 2008. 75. Subsequently, the machine was repowered on 2 October 2008. 76. On 27 September 2008 a risk assessment was performed by the defendant with respect to the flitting of Narrow Head Continuous Miners in production panels. 77. Following the risk assessment, the defendant developed a new, detailed written work procedure for the Flitting of continuous miners within the miner entitled "MSMP 023 SWP - 1 Continuous Miner Flitting - Narrow Head" (Document ldentifier NREN MSMP 023 SWP-1 Revision Number: 2 Date: 29th September 2008), together with a training package that included both a presentation and assessment mode. This SWP, and the training package developed with it, set out a step by step process for the safe flitting of continuous miners that: i. described how the work is to be carried out; ii. identified the work activities assessed as having risks; iii. identified the safety risks; and iv, described the control measures to be applied to the work activities to control the identified risks, including the control measures to be applied for the purpose of controlling and/or minimising the risk of workers being struck by and/or crushed by the continuous miner during the preparation of the machine for flitting and the flitting of the machine, and also included a description of the equipment to be used in the work, and the standards or codes to be complied with. 78. MSMP 023 SWP - 1 Continuous Miner Flitting also: required the defendant's employees to isolate a continuous miner so as to be unable to move and to tag the machine out of service, in accordance with a formal, written procedure for the isolation and tagging of machinery out of service, whenever its employees were in close proximity to and/or beside the machine for the purpose of manhandling the electrical cable attached to the machine, including hooking or tying the cable to the side of the machine for the purpose of preparing the machine for flitting; required the defendant's employees to isolate a continuous miner so as to be unable to move and to tag the machine out of service, in accordance with a formal, written procedure for the isolation and tagging of machinery out of service, prior to its employees commencing work in close proximity to the head of the machine, including when its employees were manhandling the electrical cable over the cutting head of the machine in preparation for flitting; required the defendant's employees remain clear of a continuous miner whilst the machine is being flitted; its employees only approached the machine or pass in front of the machine for any purpose, including the purpose of manhandling the power cable attached to the machine during flitting of the machines, when the machine was isolated so as to be unable to move and the machine was tagged out of service in accordance with a formal, written procedure for the isolation and tagging of machinery out of service; identified the area commencing two (2) metres from the rear of a continuous miners and the face when flitting in closed drives as a "No Go Zone" and excluded all the employees from being present in that area whilst the machine was being flitted. 79. Training with respect to the new SWP was delivered at the start of ea ch roster in the week following 29 September 2008. 80. In addition, the defendant conducted training and assessments in rel a tion to a new procedure called the "Stop-Act-Manage" program that it had been developing prior to the incid ent. 81. On 13 October, 2008 the defendant commenced a risk assessment in relation to its Remote Control Machinery Management Plan and as a consequence of the risk assessment process, the defendant determined to enable the tilt switches on all its continuous miner remote control transmitter units. The defendant subsequently carried out testing with respect to the enabled tilt switches. 82. The defendant commenced a further risk assessment in relation to remote control continuous miner (narrow head) operations including cutting, flitting and maintenance of the machines. As a result of this risk assessment process, the defendant updated a "MSMP 023 SWP - 1 Continuous Miner - Flitting Narrow Head" procedure which had been previously drafted and developed two further procedures: MSMP 023 SWP - 3 Continuous Miner - Cutting Narrow Head; and MSMP 023 SWP - 4 Continuous Miner - Maintenance Narrow Head. 83. The defendant also commenced a risk assessment in relation to remote control continuous miner (wide head) operation, namely cutting, slitting and maintenance. As a result of this risk assessment process the defendant developed the following SWP's: MSMP 023 SWP - 5 Continuous Miner - Cutting Wide Head; MSMP 023 SWP - 6 Continuous Miner - Slitting Wide Head; and MSMP 023 SWP - 7 Continuous Miner - Maintenance Wide Head. 84. Further, the defendant completed a risk assessment process in relation to pillar extraction using remote control narrow head continuous miners. As a result of this risk assessment process, the defendant developed "MSMP 023 SWP - 2 Continuous Miner - Pillar Extraction Narrow Head". 85. The defendant reviewed the process for recording pre-shift and pre-operational function tests for continuous miner remote control transmitters. As a result of this review process, the defendant developed a checklist in relation to the performance of the function tests. 86. The defendant undertook a gap analysis to identify those workers who may have missed the first round of training with respect to "MSMP 023 SWP - 1 Continuous Miner Flitting - Narrow Head" and carried out training with respect to those workers identified by the gap analysis. 87. The defendant reviewed and amended its methods for issuing learner's permits, including Learner's Permits with respect to the operation of a Dash 3 Remote Continuous Miner. 88. The defendant carried out a review of its training systems for mentors and developed "MSMP 028c Mentor Trainer Responsibilities for Continuous Miner" so as to clarify the mentor and trainer roles at the mine, in particular, with respect to the supervision of learner drivers when operating continuous miners under a learner's permit issued by the defendant. Pursuant to MSMP 28c the defendant requires its mentors and trainers to maintain both visual and verbal communication with their trainee operators at all times during the operation of the machine upon which the trainee operators are in training. 89. The defendant now provides both its trainee continuous miner drivers and its trainers with copies of the defendant's safe working documents relevant to training an operator in the operation of a continuous miner, in particular: BDT 25M3 (Dash 3) Training Manual (Machine Operation); Training Manual (Dash 3 - Safety Module); Safe Work Procedure - Continuous Miner - Narrow Head - Remote Control - Flitting (NREN MSWP 023 SWP-1) Procedure for cutting/flitting and setting up continuous miner for maintenance; MSMP 023 Remote Control Machinery Management Plan. 90. Attached are the following documents: Attached marked with the letter "A" is a map entitled Gujurat NRE Minerals Limited NRE No. 1 Colliery Overall Mine Plan Incident - 04 Panel 23/09/08; Attached marked with the letter "B" is a map entitled Gujurat NRE Minerals Limited NRE No. 1 Colliery District Plan Incident - 04 Panel 23/09/08; Attached marked with the letter "C" is a map entitled Gujurat NRE Minerals Limited NRE No. 1 Colliery Plan & Section of Miner Tracks Incident - 04 Panel N/S - 23 September, 2008; Attached marked with the letter "D" is a map entitled Gujurat NRE Minerals Limited NRE No. 1 Colliery Plan of Site Area Incident - 04 Panel NS - 23 September, 2008; Attached marked with the letter "E" is a map entitled Gujurat NRE Minerals Limited NRE No. 1 Colliery Section "A-A" and "B-B" Incident - 04 Panel N/S - 23 September, 2008; Attached marked with the letter "F" is a copy of DBT Australia Pty Ltd, 25M3 Miner - Training Manual Safety Module - revision 2, 28 November 2005; Attached marked with the letter "G" is a copy of a diagram of the controls on the remote control panel for the continuous miner (DBT Australia Pty Ltd, 25M3 Miner - Training Manual - Machine Operation - revision 2, 29 November 2005, p 13; Attached marked with the letter "H" is a photograph of the controls on the remote control panel for the continuous miner (photo taken during the investigation); Attached marked with the letter "I" is a copy of the Government Official Advice dated 2 September, 2008 issued by Inspector Myatt; Attached marked with the letter "J" is a copy of photographs numbered 1 - 61 taken by Inspector Smith on 24 September, 2008; Attached marked with the letter "K" is a copy of the defendant's Remote Control Machinery Management Plan MSMP NRE - 23 - Revision No: 1 dated 13 March, 2007; Attached marked with the letter "L" is a copy of the NRE Shift Tool Box Talk dated Friday 11 May, 2007 and entitled "Safety: No Go Zones"; Attached marked with the letter "M" is a copy of the document entitled "NRE No. 1 Colliery Risk Profile and Major Controls to Manage the Identified Risk NRE - 002 Revision No: 2 Dated: 22 May, 2007"; Attached marked with the letter "N" is a copy of the document entitled "Training & Competency Management Plan MSMP 028 NRE - MSMP - 028 Revision No: 2 Dated: 10 March, 2008"; Attached marked with the letter "O" is a copy of the document entitled "MSMP 023 SWP 1 Continuous Miner Flitting - Narrow Head" - revision 2 Dated 29 September 2008; Attached and marked with the letter "P" is a copy of the document entitled "MSMP 023 SWP 1 Continuous Miner Flitting - Narrow Head" - revision 7 Dated 19 January 2011; Causation and Injury 91. As a result of the defendant's acts and omissions set out in the Application for Order and referred to above, Mr Lakeman and Mr Fife were placed at risk of being struck by and/or crushed against a rib by a continuous miner. 92. Further, as result of the abovementioned failures, Mr Nathan Lakeman was struck by and crushed against a rib by a continuous miner and sustained serious injury. 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 1999 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, Staff J 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.' 11Section 3A of the Crimes (Sentencing Procedure) Act 1999 contains a comprehensive statement of the purposes of sentencing. It provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 12It is recognised that these purposes are sometimes conflicting and reconciliation of them can be difficult ( Veen v The Queen (No.2) (1988) 164 CLR 465 (at 476); WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm92; (2009) 186 IR 125 at [184] and the authorities cited therein). 13Of particular relevance 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: 21A Aggravating, mitigating and other factors in sentencing . . . (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) . . . 14When, in a plea of guilty, an Agreed Statement of the Facts is tendered, those facts, as agreed, are provided beyond reasonable doubt. A fact advantageous to the offender can be proved on the balance of probabilities ( R v Olbrich (1999) 199 CLR 270 at 281). Not all facts are resolved in a way which either increases or decreases sentence. Matters may not be known by the sentencing judge ( Weininger v The Queen [2003] HCA 14; 140 A Crim R 184; 196 ALR 451; (2003) 212 CLR 629 at [23] - [24]). 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.... 16The defendant took over this colliery in December 2004. It began to upgrade machinery and it acquired a continuous miner by remote control - a Dash 3 Emico - in February 2006. The defendant had, in the maker's manual on purchase, been warned of the unintended turning movement of the machine - that is, its slurring - when moving the vehicle over uneven ground or debris. On the shift when the breach occurred, crew were moving back the continuous miner (flitting) when it spun around and crushed a crew member, Mr Lakeman, against the wall. Evidence persuades both Mr Lakeman and Mr Fife were in "no go" positions, that is: they were working in the area which is defined as "no go" within two metres of a moving vehicle. The flitting procedure always required the dragging back and re-positioning of the machine's cable. The crew were handling the cable within two metres of the moving vehicle when it slurred to the right crushing Mr Lakeman. Evidence revealed debris also lay in the path of the vehicle as it was reversing. While it is unknown why Mr Lakeman moved to the side of the miner and it is not proven what caused the miner to slur to the right, what caused Mr Lakeman to move or what caused the slurring is not in issue. The risk was in the defendant's knowledge of this possibility. There was an obligation on the employer to put in place procedures to avoid that known risk. Although the risk may have only been on that date of short duration, I cannot accept such a fact, given the consequence, could be used in mitigation. 17While the defendant had in place a remote control machinery plan from March 2007 which identified the need for "no go" zones, the plan failed to provide a safe work procedure for crews performing the flitting task. Further, at Tool Box Meetings from May 2007 with the various crews on roster, reference was made to "no go" zones in the performance of the task but they were again not defined. A document identifying "Risk Profile and Controls" of May 2007, which also identified the risk, was not supported by a management plan. 18Further, a mine's inspection was conducted in August 2008, during which the flitting process was observed, and a Notice was subsequently issued to the defendant in September 2008 in accordance with s 150 of the Coal Mine Health and Safety Act 2002. The Notice informed the defendant of the practice observed, that is: miners standing between the side of the continuous miner and the wall, within the usual two metre "no go" area, to throw the electrical cable over the continuous miner. The Notice required a written work procedure be developed and that a safe work method be notified to all coal face crews. This Notice had not been fully complied with. 19On the evening of 22/23 September 2008 at 4am both Mr Lakeman and Mr Fife were within two metres of the machine in its flitting process handling cable, when the machine slurred across to the right crushing Mr Lakeman. 20I am satisfied: the defendant had its attention specifically drawn to the need to develop and enforce a safe working zone; failed to properly risk assess and devise a safe work method for the flitting task; failed to properly train its crews. There was therefore a foreseeable element to this offence which makes it even more serious. 21Even if not an element of an offence, injury and risk of death is an inherent characteristic of an offence against s 8(1) (SEE rd v R [2006] NSWCCA 43 at [10] and [40]; Takiari v R [2009] NSWCCA 84 at [29] - [33]). The risk was known and unfortunately became a reality. The failure to both co-ordinate and endorse, through a site safety work method, basic site safe modules for the crews performing the flitting procedure (including the handling of the cable) make, in this circumstance, the words of Hill J in Tyler v Sydney Electricity (1999) 47 IR 1 at (5) most apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant. 22There is a need to consider elements of deterrence in the consideration as to penalty. The Full Bench encapsulated the approach to deterrence in the following passage in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 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 Limited (No. 2) [2000] NSWIRComm 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. 23In 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 at [76]: 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. 24The defendant continues to operate the coal mine. It employs 266 staff on a permanent basis and an additional 154 contractual staff. It now operates other collieries. In such a circumstance there must be an element of specific deterrence even though evidence persuades there have been significant safety procedures introduced since the incident. 25Coal mining underground is a known dangerous occupation. This employer was on notice of a specific risk and failed to address it. Generally, the mining industry requires extra vigilance and rigour from its employers in the performance of mining activities which are inherently dangerous tasks. Once more the industry must be reminded of the need for that rigour. General deterrence is a significant element in the consideration as to penalty for this breach. 26The maximum penalty, given the defendant has no prior convictions, is $550,000. The Court of Appeal in Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 per Kirby J (with whom Campbell and James JJ agreed) said at (698): ... the maximum penalty available for an offence reflects the 'public expression' by parliament of the seriousness of the offence ... a large penalty indicates the gravity of the offence as perceived by the community. ... The task of a court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. (See also Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRC61 ; (2005) 147 IR 117 at [16] - [17]). 27The defendant is entitled to the benefit of subjective factors, that tend to mitigate the objective seriousness of the offence, which are identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant. 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)). 28In Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 (at 106), the Full Bench (Hungerford, Marks and Schmidt JJ) observed: 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 . ... A plea of guilty, therefore, may attract a greater degree of leniency in penalty. In Winchester v Regina (1992) 58 ACrimR 345, Hunt CJ at CL held (at 350): A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will be determined upon many different factors. The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the person has pleaded guilty. The defendant entered an early plea to the amended summons which, in accordance with the principles recited in R v Thomson; R v Houlton, I believe should attract a 25 percent discount of penalty. The defendant co-operated with the prosecutor in its investigation of the incident. 29Since the incident, Gujarat NRE Coking Coal Ltd has put in place a Safe Work Procedure for flitting the narrow head continuous miner. The first version was written before the incident machine was repowered. That Safe Work Procedure was trialled before it was implemented. It has since been developed to the point where it is now in its seventh revision. It is therefore a "living" document reviewed regularly which assures the Court of the defendant's ongoing safety commitment. 30In addition to the flitting Safe Work Procedure, the operator is required to check the floor of the heading for obstacles and the defendant has developed a Slips, Trips and Fall Hazards Safe Work Procedure which requires that, before any work is started, mining crew members: are to investigate the environment, eg, any obstacles in the working and traversing area. Further, after conducting a risk assessment, the Remote Control Machinery Management Plan was revised to update and eliminate inconsistencies in terminology, particularly in relation to exclusion (read: "no go") zones. 31On about 29 September 2008, the company introduced a behaviour-based safety review programme it had been developing before the incident, titled the "Stop-Act-Manage". It is designed to ensure that employees consciously review and reflect upon their individual actions and the duties required by their role. Each employee was and is required to complete a review each week by identifying a current issue, completing the check form and subsequently having their shift Undermanager sign off on it. 32I am satisfied there is now an ongoing awareness and commitment to a safe working environment within these mines - always bearing in mind the inherently dangerous nature of the industry. 33In 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) stated 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). 34Further, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that remorse may be taken into account as a mitigating factor if and only if: ... (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 35I am satisfied Mr Brett, in his position as Operations Manager with the defendant company, has expressed true remorse for the breach. This has been endorsed by correspondence signed by the company's Directors. Further, the defendant clearly makes a significant contribution to its local community. It has also provided Mr Lakeman with every assistance in support of his recovery from what were most serious injuries. 36In considering all the above issues, I find the defendant's plea of guilty appropriate in the circumstances. 37The terrible consequences of this incident have been brought to the attention of the Court, and further to the defendant, through the tender of a Victim Impact Statement from Mr Nathan Lakeman, the injured miner. He has handled his injuries with stoicism and determination but I have no doubt his general lifestyle has been affected. His fear of the future effect from the injuries I hope will dissipate with time. 38This was a most serious incident where basic site safety procedures were not in place before a very normal mining task was performed on a regular basis. There was no safe work method in place, and while there was general knowledge held by crews of "no go" zones when working near moving vehicles, there was a failure to ensure the necessary task was designed so it could be performed in compliance with the "no go" safety rule. Further, the defendant was on formal notice as to its failure to design the task and train its crews accordingly. However, I am satisfied the defendant has now in place comprehensive safe work procedures for this and other inherently dangerous mining tasks. 39I find the defendant guilty. The defendant is fined in the sum of $180,000 with a moiety to the prosecutor. Orders 40The Court makes the following orders: (1)In Matter No IRC998 of 2010, I find the defendant guilty of the offence as charged. (2)The defendant is fined in the sum of $180,000 with a moiety to the prosecutor. (3)The defendant to pay the 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. 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: 26 May 2011