Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 Hearing dates: 30 November 2012 Decision date: 12 December 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The defendant, Leighton Contractors Pty Limited, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $350,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution for breach of s 8(1) of Occupational Health and Safety Act 2000 - Fatality - Construction Industry - Employee struck by front end loader - Plea of guilty - Factors relevant to sentencing - Prior convictions - Defendant convicted of offence - Victim impact statements - Penalty imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Belley (WorkCover Authority) v Leighton Contractors Pty Ltd (unreported, Chief Industrial Magistrate's Court, 3 August 2005) Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Inspector Maddaford v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 Muldrock v The Queen [2001] HCA 39; (2011) 244 CLR 120 R v Mansour [1999] NSWCCA 180 Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Previtera (1997) 94 A Crim R 76 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Inspector Mark Barber (Prosecutor) Leighton Contractors Pty Limited (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr B Hodgkinson SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Middletons (Defendant) File Number(s): IRC 1915 of 2011 Judgment 1Leighton Contractors Pty Limited ("the defendant") was a corporation that undertook the business of construction and contract mining. It was the principal contractor on a civil construction project involving the construction of 6.5 kilometres of dual carriageway on the Hume Highway to bypass the town of Tarcutta. 2The defendant employed David Andrew Pulver, a 39-year-old truck driver/refuelling operator on a construction site of the project on the western side of the Hume Highway, approximately 1.5 kilometres north of the Tarcutta Post Office. 3On 1 July 2010, at a location on the construction site known as "cut number 2", Mr Pulver had just completed refuelling a front end loader. Whilst standing behind his refuelling truck Mr Pulver was fatally crushed between his truck and the loader when the loader driven by Terry George Wickey reversed into him. 4Arising out of the incident on 1 July 2010, the defendant was charged with breaching s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). Section 8(1) provided: (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 5It was alleged in the second amended application for order that the defendant had failed by its acts or omissions to ensure the health, safety and welfare at work of all its employees and, in particular, Mr Pulver, contrary to s 8(1) of the Act. The particulars of the amended charge were as follows: a. The risk alleged is of employees suffering crush injuries, from being struck by mobile plant, in particular a Caterpillar 966G Wheel Loader ("the loader") while undertaking duties associated with the refuelling of mobile plant at the premises. b. The work referred to is the performance of duties as a truck driver/refuelling operator including the driving a Hino Rigid Truck fitted with a tanker containing diesel fuel and undertaking refuelling of various items of mobile plant at the premises ("the work"). c. The defendant failed to provide a safe system of work for the work in that it failed to undertake the following measures: 1. providing and ensuring compliance with a task specific Safe Work Method Statement or formal work procedure for performing the work which included processes for refuelling different types of plant including: i. that the refuelling of mobile plant should be performed in purpose designed refuelling bays where the refuelling operator was physically protected by a barrier from the risk of being struck or crushed by the mobile plant; ii where the refuelling of mobile plant in purpose designed refuelling bays was not practicable a requirement that the operator of mobile plant was not to re-commence the operation of the plant until the refuelling operator was in the refuelling truck and had given direction to the plant operator that s/he was permitted to commence to operate the plant. d. The defendant failed to provide adequate information, instruction and training to its employees operating mobile plant in that it failed to undertake the following measures: 1. providing formal documented information, instruction and training in relation to the safe work method for performing the work which included procedures to be adopted for refuelling different types of plant at the premises including: i. that the refuelling of mobile plant should be performed in purpose designed refuelling bays where the refuelling operator was physically protected by a barrier from the risk of being struck or crushed by the mobile plant; ii. where the refuelling of mobile plant in purpose designed refuelling bays was not practicable the requirement that the operator of mobile plant was not to re-commence the operation of the plant until the refuelling operator was in the refuelling truck and had given direction to the plant operator that s/he was permitted to commence to operate the plant; As a result of the acts and omissions of the defendant, its employees were placed at risk of injury. As a result of the acts and omissions of the defendant, David Andrew Pulver suffered fatal injuries. 6The defendant pleaded guilty to the amended charge. Agreed Statement of Facts 7The prosecutor tendered an Agreed Statement of Facts (ASF). Annexed to the ASF was the following documentation: (a) 40 Colour photographs taken by Inspector Barber on 1 and 2 July 2010; (b) Factual Inspection Report of Inspector Barber dated 5 July 2010; (c) WorkCover safety alert titled 'Moving Plant on Construction Sites' dated 10 December 2009; (d) WorkCover Code of Practice of 2004 titled 'Moving Plant on Construction Sites'; (e) RTA safety alert 'Moving Plant on Construction Sites' dated July 2010; (f) 'The Red Book - Working around Mobile Plant' released 1 September 2010; (g) Work method statement for refuelling plant dated 30 March 2010; (h) Work method statement for refuelling plant, which incorporated the defendant's 4 tier refuelling strategy released 21 July 2010. 8The prosecutor also tendered the defendant's record of prior convictions of which there were seven: the date of the incidents that led to the first two prosecutions is not known, but convictions were recorded on 2 March 1987 and 25 July 1991. Then followed five other convictions relating to offences that occurred on 28 November 1996, 7 October 2000, 12 May 2001, 6 June 2002 and 6 August 2002. 9The ASF indicated that the defendant is a large corporation employing approximately 10,000 people Australia wide, with an annual turnover of approximately 5.5 billion dollars. The construction work on the Tarcutta project was valued at $250 million and involved earthworks, drainage works, bridgeworks and paving works. Approximately 200 workers were employed on the project. 10On 1 July 2010 the main activity being undertaken at cut number 2 at the site was the excavation of material that was being ripped and pushed into stockpiles by bulldozers. The material was then loaded into truck and dog trailer combinations to be hauled away. 11Mr Pulver operated a Hino Rigid Truck owned by All States Truck Commercial Rentals and 'dry hired' (hired without an operator) by the defendant. The vehicle was approximately 9.13 metres long, 2.44 metres wide and 2.8 metres high. There was a large tank containing diesel fitted to the tray of the refuelling truck, with a fuel dispensing system at the rear of the truck consisting of a central pump with two hose reels on either side. The refuelling operator would stand at the rear of the truck in order to refuel items of plant. 12Mr Wickey was a 27-year-old labourer operating the front end loader, and had been employed by the defendant since May 2010. Mr Wickey's duties were to use a front end loader to load soil from a stock pile into tipper and dog, or truck and dog, trailer combinations so it could be hauled away to other locations to be used as construction fill. 13Mr Wickey held a Backhoe Front-End Loader Certificate of Competency. Clause 266 of the Occupational Health and Safety Regulation 2001 defines the operation of a front end loader as scheduled work, requiring operators to hold the relevant certificate of currency or be training on a log book under the supervision of a competent person. A backhoe front end loader is a separate item of plant to a front end loader and at the material time both required individual certification. 14However, Mr Wickey did not hold a certificate of competency to operate a front end loader in accordance with cl 270 of the Regulation, nor at the relevant time was he operating the front end loader on a log book under the supervision of a competent person. 15Mr David Town was the Project Trainer and Assessor/Plant Risk Assessor, employed by the defendant at the construction site. Mr Town held a certificate IV in WorkPlace Training and Assessing. He was not an accredited WorkCover authorised assessor in accordance with cl 284 of the Regulation to undertake competency assessments in relation to the operation of load shifting equipment, including front end loaders. Mr Town, incorrectly interpreted Mr Wickey's certificate of competency to operate a backhoe as certification to operate the front end loader at the site. 16In May and June 2010, Mr Town assessed Mr Wickey's competency on the operation of the front end loader. Initially Mr Town felt Mr Wickey required further training in the operation of the loader. Following the training Mr Town assessed Mr Wickey as competent. The ASF stated: Subsequently, in June 2010, Mr Wickey underwent further training which involved tasked training to assist Mr Wickey to maximise his bucket loads, shortening travel routes, correct loading of tipping trucks and general quarrying techniques and floor maintenance. There was no training in relation to procedures for refuelling the loader. The training took place in June 2010 culminating in a determination of competency on 12 June 2010. There was an incident on 28 June 2010, where Mr Wickey was driving the front end loader and came into contact with the offside section of the rear (dog) trailer of a truck, causing a minor dent. There was another incident in June 2010, where Mr Wickey loaded a truck and dog trailer in such a way as the load was off centre, causing the truck to lean. Leighton required Mr Wickey to undertake reassessment as a result of the incident. On 28 June 2010, Mr Wickey was reassessed, deemed competent and put back to work. 17The front end loader operated by Mr Wickey on 1 July 2010 was articulated and had an overall weight of 22.5 tonnes, was approximately 9.1 metres long, 2.95 metres wide and 3.8 metres high. The driver's cabin was located in the centre of the loader, with a single driver's seat located approximately 2.68 metres above the ground. The cabin had large glass windows, and two rear vision mirrors on either side of the cabin. 18According to the ASF the fill point for the fuel tank of the front end loader was located at the rear of the engine, behind the cabin. On 1 July 2010, the reversing beeper of the front end loader was operational and the loader was fitted with a bucket attachment. 19The circumstances of the incident in which Mr Pulver was fatally crushed and the incident itself was described in the ASF: At approximately 7:00am on Thursday 1 July 2010, there was a 'Daily Pre Start Meeting' at cut number 2 at the site conducted by Wayne Meredith, Leading Hand for cut number 2, under the direction of Neville Sharwood, Foreman for cut number 2. Mr Wickey attended the meeting. One of the issues raised at the meeting was to keep clear of the reversing front end loader. Mr Wickey's duties for the day were to load truck and dog trailers using the front end loader, from a stockpile of soil at cut number 2. On 1 July 2010, a daily pre start meeting was conducted for 'workshop' employees in the 'crib room' at the workshop compound at the site. The daily pre-start meeting was conducted by Plant Superintendent Greg Doyle. Mr Pulver attended the daily pre-start meeting. On 1 July 2010, Mr Pulver was to perform his usual duties as refuelling operator at the site. On the day prior to the incident Mr Pulver had refuelled a total of 53 items of plant, 43 of which were mobile plant. On 1 July 2010, at approximately 12:40pm, Mr Pulver had finished refuelling a 47 tonne excavator at the site. Mr Pulver then drove the refuelling truck in a northerly direction toward the front end loader being operated by Mr Wickey which was operating in the vicinity of the stockpile of soil at cut number 2. Mr Wickey had just finished loading a truck with soil and saw that Mr Pulver was approaching him. Mr Wickey assumed that Mr Pulver was there to refuel the front end loader, and so Mr Wickey reversed the front end loader, turned the motor off and stood on the nearside rear mudguard of the front end loader. Mr Paul Williams ("Mr Williams") was driving a tip truck and dog trailer ("the tip truck") in a northerly direction in the vicinity of the stockpile of soil at cut number 2, and called on the UHF radio to allow Mr Pulver to cross in front of him. Mr Williams was waiting to be loaded with soil by the front end loader driven by Mr Wickey, once the refuelling process was finished. During the refuelling process, the front end loader was facing in a westerly direction, and the refuelling truck was facing in an easterly direction. The rear of each vehicle was facing the other, and the vehicles were approximately 3 metres apart. Mr Pulver went to the rear of the refuelling truck, opened the cowling on the motor at the rear of the front end loader and removed the fuel cap. Mr Pulver then removed the offside refuelling hose on his truck and refuelled the front end loader. During the refuelling process Mr Wickey remained standing on the nearside mudguard of the front end loader and Mr Williams remained seated in the cabin of his tip truck, waiting to be loaded. After refuelling the front end loader, Mr Pulver replaced the fuel cap and closed the cowling on the rear of the loader. Mr Pulver rewound the refuelling hose onto the reel at the back of his truck. Mr Williams saw Mr Pulver completing his 'paperwork' at the rear of the refuelling truck, with his back to the front end loader. Mr Pulver completed refuelling receipt No. 93, which indicated information such as the date, as well as the engine hours of the front end loader as provided by Mr Wickey, and the barcode identification number 10158 located on the rear of the loader, that Mr Pulver would have scanned. After the refuelling was completed Mr Wickey recommenced operation of the front end loader. He drove forward into the stockpile, collected a bucket of soil, reversed the loader and then placed the load of soil into Mr Williams' tip truck. Mr Wickey states that he then checked his mirrors and reversed the front end loader, with the intention of then driving back to the stock pile to collect another bucket of soil. Mr Wickey states that while he reversed his vision was impaired by the angle of the articulated loader. Mr Wickey heard the rear of his loader collide with something and assumed it was the rear of the refuelling tanker. Mr Williams saw Mr Pulver standing at the back left hand corner of the refuelling truck and being crushed between the loader and the refuelling truck. Mr Wickey heard the hit between the machines and moved the front end loader forward and jumped out to tell Mr Pulver he'd hit his machine and saw Mr Pulver lying on the ground. Mr Wickey went to Mr Pulver's assistance. Mr Wickey then returned to his loader to call on the UHF for medical assistance. Mr Williams then went to assist Mr Pulver. Mr Williams checked his breathing and pulse, but could not find either. Mr Williams noted that Mr Pulver's eyes were glassy and his pupils dilated. Mr Williams commenced CPR with a negative result. Other workers came to the scene and recommenced CPR for 40 minutes until the ambulance officers arrived. Upon examination of Mr Pulver the ambulance officers found nil vital signs and pronounced life extinct. Mr Pulver had been fatally crushed between the loader and the refuelling truck. 20The ASF addressed the systems of work in the project prior to the incident. These included: (a) a requirement that all workers received a site specific induction lasting approximately 6 hours prior to commencing work at the site. The site-specific induction included training in OHS, environmental, quality and community issues; (b) pre-start meetings to be held every day. Workers on the project were obliged to attend a pre-start meeting prior to commencing work at the site. The meetings outlined daily duties as well as hazards and control measures; (c) a 'Vehicle Movement Plan' whereby all construction vehicles working on cut number 2 were required to enter via gate 45 on the Hume Highway and change to UHF radio channel 25. The speed limit at the site was 40kph on haul roads, and 'walking pace' when passing ground crew. Vehicle operators communicated with each other via the UHF. Plant operators were required to stop and lower all tools prior to a vehicle passing or crossing within 30 metres. The Vehicle Movement Plan did address a number of hazards relating to the interaction of various items of moving plant at the Site and put in place a number of control measures to eliminate or minimise the risk of injury arising from vehicle interaction. However, it did not address the risk from vehicle movements during the refuelling process or establish control measures to address this risk; (d) a Safety Health & Environment ("SH&E") Work Method Statement for the work activity of 'Load, Haul, Place and Compact with Truck and Dogs, or Dump Trucks using the Loader', which was applicable to the work being undertaken by Mr Wickey at the date of the incident. However, the Loader SH&E WMS did not address the safe method for refuelling the Loader and the requirements on the Loader operator during this process. 21The ASF described the system for loading trucks with the front end loader. This involved the truck driver pulling up to a location in the vicinity of the stockpile when instructed by Mr Wickey over the UHF or via the horn of the loader being sounded. Mr Wickey would place two buckets of material in the rear of the truck. Mr Wickey would then sound the horn of the loader, or use the UHF radio to indicate the truck and dog should move forward to allow further loading. Mr Wickey would then place two further bucket loads of material into the rear trailer. The driver of the truck and dog would remain in the cabin of the vehicle while the loading operations took place. Once the truck and dog were loaded, the driver would move the vehicle forward out of the area so that the next truck could come in. The driver of the loaded truck would then stop the truck and roll the tarps back over the load. 22The ASF described the system of refuelling. The defendant had a SH&E Work Method Statement for Refuelling Plant on Site. The Statement listed as one of the hazards of the task 'Servicemen being hit by machines leaving the area'. The control measure for this hazard was 'Serviceman to ensure area is clear and move away from plant in forward direction, maintaining clear communication with plant in the area at all times'. However, the ASF stated this control measure did not reflect the work practices in place at cut number 2 prior to the incident, nor did it adequately address the risk to the operator of the refuelling truck. A number of informal practices were adopted for refuelling of plant and the control measures to prevent persons being struck outlined in the SH&E Work Method Statement for Refuelling Plant were regularly not implemented. 23In relation to the failure to observe safe refuelling practices, the ASF stated: The safe work method statement and/or the system of work in place at the site at the time of the accident provided no designated times or areas for refuelling plant, did not require exclusion zones or barriers, or ensure that work was not recommenced before the refuelling operator had given a direction that it was appropriate to do so. The system for refuelling of plant at the site did not include designated times or places for refuelling, although some items of larger plant such as scrapers or dozers were often, but not always, refuelled during designated breaks, such as tea break or lunch. Refuelling of vehicles at the site required Mr Pulver to stand at the rear of his truck during the refuelling operation. Mr Pulver would then complete the fuel receipt whilst he was standing at the rear of his truck. Some workers at the site said that it was normal practice for the loader to recommence operations whilst Mr Pulver stood at the rear of the tank completing the fuel receipt. Other workers said that they would not recommence operations until Mr Pulver had returned to his driver cabin and radioed that the area was clear prior to recommencing their machines. Some operators at the site, including Mr Wickey, had not received any training or instruction in relation to refuelling procedures, in particular they had not received training in the SH&E Work Method Statement for Refuelling Plant at the site. The contents of this document had not been conveyed to plant operators such as Mr Wickey. ... The systems of work for refuelling in place at the site prior to the incident failed to require that refuelling of mobile plant took place, prior to or at the end of shifts, or during specified breaks. Further, it did not require that the refuelling of mobile plant should be performed in purpose designed refuelling bays where the refuelling operator was physically protected by a barrier from the risk of being struck or crushed by the mobile plant. The systems of work for refuelling in place at the site prior to the incident failed to require that operator of the mobile was not to re-commence the operation of the plant until the refuelling operator was in the refuelling truck and had given direction to the plant operator that s/he was permitted to commence to operate the plant. Supervisors periodically undertook task observations of workers at the site. However, prior to the date of the Incident no documented task observation had been undertaken in relation to Mr Wickey or Mr Pulver's performance of their duties at the site. 24The ASF referred to the fact that on 10 December 2009, WorkCover released a safety alert titled 'Moving Plant on Construction Sites' which highlighted a number of control measures that should be considered and integrated into the system of work. Control measures listed include using barriers, spotters, and maintaining safe working distances. Reference was also made to a Code of Practice issued by WorkCover in 2004 titled 'Moving Plant on Construction Sites'. The Code of Practice listed hazards that have resulted in fatalities, including plant being operated near persons and reversing plant and provided examples of control measures such as using barriers, and planning direction of travel so visibility of operators is not restricted. 25The ASF addressed the systems of work put in place by the defendant following the incident: (a) all activity at the site ceased until 5 July 2010. The defendant arranged for counselling for workers and the family members of Mr Pulver and Mr Wickey; (b) Mr Wickey was certified unfit for duties, and returned to the site on suitable duties on 30 August 2010; (c) Mr Williams, the truck driver who witnessed the incident, received counselling and was certified unfit for duties for one week; (d) WorkCover issued an Improvement Notice on the defendant to review existing refuelling procedures. All staff on civil construction projects were instructed to carry out refuelling prior to or at the end of shifts, or during smoko and lunch breaks, or in designated and purpose designed refuelling bays; (e) the defendant undertook an investigation and review of the incident; (f) on 12 July 2010, the defendant developed a 4 tier refuelling strategy, in consultation with workers. Tier 1 related to the refuelling of light vehicles and mobile plant operating within the compound at the base refuelling station. Tier 2 related to the refuelling of mobile plant before and after shifts, and during designated breaks whilst the vehicle was parked. A 50 metre exclusion zone applies to working plant. Tier 3 related to refuelling on site in designated refuelling zones where the refuelling operator was protected by concrete barriers. Tier 4 applied to semi-static plant, and involved the use of a series of barriers to protect the operator; (g) on 21 July 2010, the defendant released a work method statement for refuelling plant, which incorporated the 4 tier refuelling strategy; (h) on 1 September 2010, 'The Red Book - Working around Mobile Plant' was released and implemented; (i) during July 2010, the RTA issued a safety alert 'Moving Plant on Construction Sites' as a direct result of the incident. The document appears on the Roads and Traffic Authority website and the WorkCover website has a link to this alert; (j) on 18 March 2011, the defendant, in conjunction with its alliance partners on the project (the Roads and Traffic Authority, Maunsell Australia Pty Limited, SMEC Australia Pty Ltd and Coffey Geotechnics Pty Limited) and the Construction, Forestry, Mining and Energy Union, held a commemorative service and dedicated the naming of a pass over bridge north of Tarcutta as the 'David Pulver Bridge'. Mr Pulver's family and friends attended the event, and his children officiated in the cutting of the ribbon. Evidence for the defendant 26The defendant's evidence consisted of an extensive affidavit of Mr Robert Duvel, Group Manager, Safety Health and Environment Operational Services for the defendant. There were 29 annexures to the affidavit. 27At the outset of his affidavit Mr Duvel conveyed on behalf of the defendant's Board and management their "deep sadness and sincere remorse at the loss of a highly respected, safe working and valued work colleague in David Pulver, and acknowledge the impact that the incident has had on David's family and friends." 28Mr Duvel provided an overview of the defendant's operations, noting that it employs over 12,000 direct employees across its businesses. In addition, it utilises in excess of 20,000 contractors and casuals depending on the workload. 29The defendant has a set of values that are published in a booklet. Its values were said to underpin and reflect the Company's commitment to safety and are fundamental to its culture. The defendant's stated values are: (a) Safety and health above all else; (b) Enduring business relationships; (c) Achievement through teamwork; (d) Our people are the foundation of our success; and (e) Respect for the community and environment. 30The defendant is divided into a number of divisions responsible for different aspects of its business. The division responsible for the road infrastructure, the subject of this incident, is the Eastern Infrastructure Road Division, known as the "Roads Business". The Roads Business had a safety management framework which derived from, and was consistent with, the defendant's safety management system. Each specific project has its own safety management framework derived from, and consistent with, the defendant's safety management system. 31The Tarcutta Hume Alliance ("THA") project, where the incident occurred, had a dedicated safety team, including the Project Safety Manager, two Safety Coordinators, a Site Nurse, a Plant Administrator and a Plant Assessor. The project had a Project Management System that consisted of a Safety Management Plan, Construction Management Plan, Traffic Management Plan, Quality Management Plan, and an Environmental Management Plan. From each of these plans detailed site instructions and procedures were produced. 32Mr Duvel explained the defendant's commitment to safety prior to the incident. This included: [A] well developed corporate safety system which was accredited to the Australian and overseas standards for safety management systems OHSAS 18001:2007 and AS/NZS 4801:2001. In addition, Leighton Contractors had a Quality Management System accredited to ISO9001:2008, and an Environmental Management System accredited to AS/NZS ISO 14001:2004 which were applied and utilised in each of its divisions. ... In 2008 Leighton Contractors engaged an external consultant, Evans & Peck, to undertake a comprehensive review of its then safety management system. Evans & Peck is a specialist safety consultancy with particular expertise in the construction, mining and infrastructure industries. Their review recommended changes to Leighton Contractors' safety strategy and systems deriving therefrom. These changes were implemented and formed the basis for further development. ... 33Mr Duvel also dealt with the defendant's commitment to safety after the incident on 1 July 2010. The steps taken by the defendant were comprehensive and reflect a commendable response. Accordingly, it is appropriate to include the detail of the response in the judgment so that others might learn from it: Leighton Contractors stopped all work on the project and the THA site was shut down. All personnel working on that day were called back to the THA compound and were advised of David's death. The site was closed. We arranged counsellors and advised the workforce that counsellors would be available for any of them to consult as needed. The site staged a progressive re-start of works with normal operations resuming approximately a week later. Brett O'Leary, Alliance Manager, and Kylie Coleman, HR Officer, attended with the police to David's wife's house to advise her of his death. As she was not home, Brett, Kylie and the police attended David's wife's workplace. At the Leighton Contractors corporate level, a crisis management team was immediately established. Senior representatives of the company flew to the THA on the same day of the incident. As the workforce at the site presented to the site the day after the incident, management had a predetermined talk to all personnel on the site. The purpose was to provide available information to all personnel as to what had occurred, to make them aware the site would be closed and to advise that counselling services were available for them on site should they be needed. All personnel were advised that they could immediately leave the site or remain to speak with the counsellors.... Later the same day, Brett O'Leary was contacted by David's step father and asked to visit David's family. Brett met with David's step father, mother, sister and father. During that meeting Brett provided as much information as he could and offered support to David's family. On 9 July 2010 Leighton Contractors' Executive General Manager, Michael Metcalfe, issued instructions by email to all General Managers within Leighton Contractors Construction Division requesting that all projects undertake a risk review of refuelling operations. The instruction prohibited refuelling activities being undertaken on all civil construction projects which did not occur either out of work hours (pre or post shift or during lunch breaks) or in a controlled situation where designated and purposely designed refuelling locations had been established. ... In consultation with both the workforce at THA and the Leighton Contractors Roads Business, THA developed a Four Tier interim refuelling strategy which was implemented at THA on 12 July 2010. In short, Tier 1 related to refuelling of light vehicles and mobile plant operating within the compound at the Base refuelling station. Tier 2 related to the refuelling of mobile plant before and after work, during smoko and during lunch break periods when the plant was parked up. Tier 3 related to refuelling out on site in purpose-designed refuelling zones whereby the refuelling operator was protected by concrete barriers. Tier 4 applied to large semi-static plant normally applicable to Tier 2, however where work had recommenced and refuelling was undertaken via the protection of a series of barriers to protect the refuelling operator. ... In support of the interim strategy, the THA site developed a training video and a revised Safety Health and Environment Work Method Statement (SHEWMS) for plant operators and refuelling personnel on how to safely implement the strategy. All relevant personnel at the site were trained in the interim strategy. The interim strategy was presented to WorkCover along with training and toolbox records. In addition, the THA project developed what became known as the Red Book. This was essentially an extensive list of separation distances for different types of plant used on the project. The purpose of the Red Book was to provide plant operators with information on separation distances for specific types of plant in operation at the THA project. A copy of the Red Book is included in the WorkCover tender bundle. Whilst the specific instruction was given to review refuelling processes in the Construction Division, Leighton Contractors management recognised that the refuelling of plant was a risk across its whole operations. On 13 July 2010 Leighton Contractors' Managing Director, Peter McMorrow, issued a memorandum to all General Managers across all the Leighton Contractors businesses to review refuelling operations across all Leighton Contractors operations. The memorandum repeated the requirement that all projects were to carry out a risk review of refuelling operations. The memorandum reiterated the prohibiting of refuelling activities being undertaken on projects which did not occur either out of work hours (pre or post shift or during lunch breaks) or in a controlled situation where designated and purposely-designed refuelling locations had been established. ... In order to comprehensively review refuelling operations across the Leighton Contractors business, an audit was undertaken of processes on each project for refuelling. The purpose of this audit was to identify the appropriate controls which could be implemented at an organisational level but which could still apply across the different business units. ... Where improvements were identified, they were implemented within the timeframes set. In addition to the abovementioned directives, the memorandum made reference to a Significant Safety & Health Incident Alert. This Safety Alert was issued on 13 July 2010 by Leighton Contractors' General Manager Health and Safety, Mike Walsh, and was disseminated across all Leighton Contractors projects. The Alert was designed to communicate an overview of the incident and to provide key learnings. The Alert required confirmation from Leighton Contractors Project Managers: (a) that they had considered the content of the Incident Alert; (b) that they had considered whether the risk of a similar incident had the potential to occur on their project; (c) what appropriate measures were in place to eliminate the potential for a similar occurrence on their project; and (d) whether the control measures were sufficient to prevent or mitigate the risk of an incident of this type occurring. ... The Alert required a response from each Project Manager acknowledging that they had read the Alert and considered the controls for refuelling on their projects. These acknowledgements were received. The mandated review of refuelling activities across all Leighton Contractors businesses resulted in the development of a Refuel Mobile Powered Plant Procedure - SHEWMS and a refuelling bay design. The procedure sought to specifically incorporate the development and implementation of a 5 Tier Approach to Refuelling (set out below). ... The review resulted in the development of a 5 Tier Refuelling strategy which remains in place today across all Leighton Contractors projects. These 5 tiers are as follows: Tier 1: Base Refuelling Station; Tier 2: Temporary Refuelling Station; Tier 3: Large Semi-static/Tracked Mobile Plant Refuelling; Tier 4: Frequently Changing Refuelling Station; and Tier 5: Emergency Refuelling Essentially, the type of refuelling process employed on a particular site is determined by a risk assessment with a preference given to Tier 1 or Tier 2 arrangements. Tiers 3, 4 and 5, which require the refuelling trucks to enter the working environment, are only allowed where Tier 1 and Tier 2 arrangements are not possible and the Project Manager has personally approved their use. The Refuel Mobile Powered Plant Procedure - SHEWMS was implemented throughout the Leighton Contractors business in December 2010. This procedure is now incorporated into all Leighton Contractors projects and is contractually imposed upon contractors.... The 5 Tier Approach to Refuelling includes the following requirements: (a) The Plant Operator shall ensure the Plant is parallel-parked to the Fuel Truck, on reasonably level ground and clear of any obstructions in the designated refuelling area; (b) The refuelling area shall be physically separated, by way of an Exclusion Zone, from any other operations of work in the immediate area; (c) A Refuelling Safe Zone is established for the Plant Operator to remain in during the refuelling process and only once the Plant Operator is in the Refuelling Safe Zone can the Fuel Truck Operator exit the Fuel Truck to commence the refuelling. The position of the Refuelling Safe Zone must allow the Fuel Truck Operator to have line of sight with the Plant Operator at all times; (d) Before commencing the refuelling, the Fuel Truck Operator is required to fit a "NO ENTRY - REFUELLING IN PROGRESS" sign to each cab access way or control panel on the item of Plant; and (e) On completion of refuelling, the Fuel Truck Operator must remove the signs and lock, return to the Fuel Truck cab and advise/authorise the Plant Operator to de-isolate the plant. The Plant Operator must not re-enter the cab of the plant until instructed by the Fuel Truck Operator. The Fuel Truck Operator must complete all paperwork in the cabin of the Fuel Truck, or in the Refuelling Safe Zone at the end of the refuelling. The Refuel Mobile Powered Plant Procedure - SHEWMS is now comprehensively audited and forms part of the: (a) Project Commencement Review; (b) Safety Management Implementation Plan; (c) 90 day Post-commencement; and (d) Safety Management System governance activities. 34At the time of the incident, the defendant was in the process of developing its "Safety Essentials". The Safety Essentials involved the identification of critical risks present in each of the company's areas of activity. Mr Duvel indicated that Safety Essentials formed part of the defendant's safety management framework, but provided specific direction for the management of critical risks on all of the defendant's projects across each division. 35The Safety Essentials campaign involved the production of a DVD where work colleagues of Mr Pulver expressed the impact of his death on them personally. The DVD is quite sobering and a worthwhile initiative. The defendant has played it during the induction of personnel, during toolbox talks, has integrated it into Safety Foundations Training and Safety Essentials Training and shown it to the workforce during Safe Work Australia weeks. 36Mr Duvel explained that: The focus of the Safety Essentials is about addressing recurring critical risks in the industries within which Leighton Contractors operate. Accordingly, prior to the release of the Safety Essentials, Leighton Contractors undertook a detailed analysis of the areas in which it was working. The analysis identified a list of repetitive critical risk activities, hazards and processes specific to each of Leighton Contractors' Divisions. The analysis formed the basis of the Safety Essentials. The Safety Essentials now: (a) set the standard for how Leighton Contractors manages critical risks; (b) represent the minimum non-negotiable requirements for critical risk activity and apply to every Leighton Contractors workplace and worker; (c) every worker is responsible for working to the Safety Essentials and for keeping their safety, and that of their colleagues, a priority; (d) increase the level of leadership in the management of critical risks; (e) identify all activities that involve critical risks as addressed in the Divisional Safety Essentials; (f) apply the Hierarchy of Controls in the development of treatment plans for activities that contain critical risks as addressed in the Safety Essentials; (g) develop risk registers in every operation that clearly identify each activity being undertaken that contains a critical risk together with its individual treatment plan; and (h) effective processes that monitor and review the treatment plans for all activities containing critical risks. 37In January 2011, the defendant's Roads Business Safety Working Group advised of new controls, specifically tailored to the Roads Business, for working in and around mobile plant. These controls were the outcome of three months of consultation with a cross-section of project directors, general superintendents and safety managers from the five NSW Roads Business projects, together with the NSW/ACT Branch Safety Manager and Mr Duvel. The group was established, sponsored and chaired by the Roads Business Manager. The purpose of the consultation was to develop practical controls that would make a significant difference to the safety of the defendant's workers engaged in road projects. The controls included: (a) minimum exclusion distances for general plant types; (b) an "Authority to Work" process for activities where working in proximity to operating mobile plant cannot be prevented; and (c) an awareness campaign "Stay Back, Stay Safe" aimed at workers, visitors and operators, promoting pedestrian safety and the maintenance of safe distances from plant. 38Other initiatives taken by the defendant included: (a) The Leighton Contractors Executive Management Team (EMT) (now the Executive Leadership Team) convenes on a monthly basis during which safety and health related issues are discussed; (b) The Safety Health and Environment (SHE) Executive Committee was formed whose primary purpose was to function as the vehicle to promote improved performance and consistency on safety, health and environmental issues across the business; (c) In February 2012 Leighton Contractors commissioned a second major independent review through Deloitte Touche Tohmatsu. Leighton Contractors commissioned Deloitte to undertake a review of its health and safety system. The scope of the Deloitte Review was to: (i) assess the status of the progress Leighton Contractors had made following the Evans & Peck December 2008 National Safety Review; (ii) identify examples of good practice with regard to the implementation of the strategic objectives as defined in the Blue Book; (iii) recommend areas for improvement in the delivery of Leighton Contractors' current safety strategy; (iv) highlight opportunities for future strategic adjustment; (v) benchmark Leighton Contractors against recognised industry leaders; and (vi) support the delivery of a safety culture survey. Leighton Contractors SHE Executive is currently reviewing and addressing the recommendations from the Deloitte Review with a number of initiatives already having been implemented. (d) In addition to the Deloitte Review, it was recognised by Leighton Contractors management that an analysis of its safety culture would provide guidance on areas for improvement. Accordingly, a Safety Culture Survey was commenced through the Queensland University of Technology's centre for Accident Research and Road Safety. Major findings included: (i) the average safety climate score across Leighton Contractors was positive at 4.26 out of 5; (ii) the average safety motivation score across Leighton Contractors was positive at 4.65 out of 5; (iii) the average safety compliance score across Leighton Contractors was positive at 4.47 out of 5; (iv) the average safety participation score across Leighton Contractors was positive at 4.25 out 5; and (v) safety behaviour was also measured by asking respondents to indicate which percentage of time they and their co-workers follow all safety procedures. Average percentages across the organisation were high with self and co-workers at 93% and 88% respectively. The final part of the Safety Culture study is currently being conducted with results expected to be disseminated towards the end of 2012. The final part of the survey involves the development of guidelines for safety culture intervention based on core components identified from the previous stage. (e) Leighton Contractors now has six independent Safety Management Systems currently operating, all of which include the Leighton Contractors Business Standards and Safety Essentials. Each of the six systems relate to a separate business division of Leighton Contractors. Leighton Contractors has fifteen Safety and Health Business Standards that are applicable across the business and reflected in each of the six Safety Management Systems. These are: (i) SHE Leadership and Commitment; (ii) SHE Planning and Performance; (iii) SHE Communication and Consultation; (iv) SHE Hazard Identification, Risk Assessment & Control; (v) SHE Responsibility and Authority; (vi) SHE Considerations for New Projects; (vii) Capability, Integrity and Operation of Plant and Equipment; (viii) Contractors and Suppliers; (ix) Management of Hazardous Materials and Dangerous Goods; (x) SHE Training and Competence; (xi) SHE Emergency Preparedness and Response; (xii) SHE Incident Management; (xiii) SHE Performance Monitoring and Reporting; (xiv) SHE Reviews Audits Inspections and Corrective Actions; and (xv) Occupational Health and Hygiene. Each Leighton Contractors Safety Management System is externally accredited. 39Mr Duvel identified the assistance provided to Mr Pulver's family: Leighton Contractors provided support to David's wife and family immediately following the incident. Peter McMorrow, the then Managing Director of Leighton Contractors, personally visited David's family to offer support. In addition to providing counselling services to the workforce, Leighton Contractors offered counselling services to David's family. Those services were taken up by members of David's family. The THA site rallied together and set up a fund for David's family. The THA staff were able to donate if they wished. Leighton Contractors collected donations from the site and industry and raised $57,500.00 for David's family. Leighton Contractors matched on a dollar for dollar basis the contributions made by Leighton Contractors staff. In addition, Leighton Contractors paid for David's funeral and wake. Out of respect for David and his family, the THA site was shut down for David's funeral. 300 project staff and business unit staff, including myself, attended David's funeral. The project staff formed a guard of honour at the request of his family. The THA project management subsequently arranged for a bridge that had been constructed as part of the project to be named in David's honour and organised a dedication at which David's family attended. The THA project management also arranged for a plaque to be erected at the Truckies Memorial in Tarcutta in memory of David. Senior representatives of Leighton Contractors attended the unveiling of a plaque in memory of David at the CMFEU office in Sydney. The THA project management also arranged for a memorial to be placed in the local paper on the first anniversary of David's death at the request of David's family. The Leighton Contractors family continues to feel the loss of David. 40Mr Duvel deposed that at all times during WorkCover's investigation and following the incident, the defendant had fully co-operated with WorkCover. 41Mr Duvel stated that the defendant assisted the community through a number of initiatives and programs. The Community Investment Program assists communities in which the defendant works. The program focuses on three core areas being disadvantaged youth, indigenous people and the environment. In the financial year 2011/2012, Leighton's Community Investment contribution was $2.64 million. 42In relation to remorse and contrition, Mr Duvel stated: The Leighton Contractors Board, management and employees were deeply shocked and affected by the incident. I am authorised to express Leighton Contractors' sincere remorse that David, a valued employee, lost his life, that the incident occurred, and that Leighton Contractors has breached the Occupational Health and Safety legislation. Further, the Leighton Contractors Board has always instilled in the organisation, and continues to have, a genuine commitment to safety. An injury of any description, to any worker, is absolutely unacceptable. The company is deeply saddened at the impact that the incident has had on David's family, friends and colleagues. This incident has reinforced to all of us the need to be ever-vigilant and pro-active with all aspects of safety in the workplace. Consideration Principles 43Section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)Act") provides that : (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 44In Muldrock v The Queen [2001] HCA 39; (2011) 244 CLR 120 at [18], after referring to the terms of s 21A of the C(SP)Act, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) stated: [18] At common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality (Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14), parity (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46), totality (Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70), and the avoidance of double punishment (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57). In R v Way, the Court of Criminal Appeal held that s 21A(1) preserves the entire body of judicially developed sentencing principles, which constitute "law" for the purposes of both s 21A(1) and s 21A(4) (R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at 183 [56]- [57]). No question of the correctness of that interpretation was raised in this appeal and it may be accepted. In this statutory context the principles of the common law respecting the sentencing of offenders answer the description of "matters that are required ... to be taken into account by the court under any ... rule of law" (Cf R v Hoar [1981] HCA 67; (1981) 148 CLR 32 at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ; [1981] HCA 67; Pearce v The Queen (1998) 194 CLR 610 at 623 [41] per McHugh, Hayne and Callinan JJ). 45Thus in sentencing, the Court is required to take into account aggravating factors in s 21A(2), mitigating factors in s 21A(3) and any other objective or subjective factor that affects the relative seriousness of the offence (s 21A(1)(c)). These matters are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law, which includes the "body of judicially developed sentencing principles". 46Additionally, what the High Court said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 at [27] must be observed: [27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALJR 616 at 618 [5] per Gleeson CJ, 624 [26] per Gummow, Callinan and Heydon JJ; 205 ALR 346 at 348, 356) (emphasis added). 47The established body of sentencing principles in the Industrial Court was, with respect, pithily summarised by the Full Bench in Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [13]-[15]. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [181]-[194] Walton J, Vice-President provided a helpful and more expansive digest of cases and the sentencing principles to be derived from those cases peculiar to occupational health and safety offences. Nature and quality of offence 48In assessing, first, the objective seriousness of the offence, the Court is assisted by a consideration of the nature of the risk and the defendant's acts or omissions in exposing Mr Pulver to that risk. The risk was that of employees suffering crush injuries from being struck by the front end loader while undertaking duties associated with the refuelling of mobile plant at the premises. The defendant failed to ensure Mr Pulver was not exposed to that risk in the manner particularised in the charge. 49There was no clear-cut and enforced practice for refuelling at the site. Some workers said that it was normal practice for the loader to recommence operations whilst Mr Pulver stood at the rear of the tank completing the fuel receipt. Other workers said that they would not recommence operations until Mr Pulver had returned to his driver cabin and radioed that the area was clear prior to recommencing their machines. A system that permitted Mr Pulver to stand at the rear of the refuelling truck to complete paperwork whilst large, heavy loaders in close proximity recommenced operations, which involved reversing an articulated loader, placed Mr Pulver at risk. The risk of being struck by a reversing loader was obvious and, indeed, known to the defendant. 50The risk in this case must be considered in light of the fact that Mr Wickey had only been operating the front end loader since May 2010. He did not hold a certificate of competency to operate the loader and his previous experience in doing so was minimal. Mr Wickey initially demonstrated a lack of competency to operate the loader, but was later certified as competent after training. However, a person not qualified to do so certified him to operate the loader. 51Moreover, whilst the defendant did have a Work Method Statement for Refuelling Plant, some operators at the site, including Mr Wickey, had not received any training or instruction in relation to refuelling procedures. In particular, they had not received training in the SH&E Work Method Statement for Refuelling Plant at the site. The contents of this document had not been conveyed to plant operators such as Mr Wickey. That Statement listed as one of the hazards of the task 'Servicemen being hit by machines leaving the area'. The control measure for this hazard was stated to be that the 'Serviceman to ensure area is clear and move away from plant in forward direction, maintaining clear communication with plant in the area at all times'. 52The project was on a site where mobile plant was constantly on the move and Mr Pulver would go from plant to plant for the purpose of refuelling. Mr Pulver obviously had to leave his truck to carry out the refuelling task, which placed him on open ground and vulnerable to being struck by plant. This aspect of the risk could have been avoided or at least very substantially minimised if the defendant had in place a system that required plant to be refuelled at designated times in purpose-designed refuelling bays where the refuelling operator was physically protected by a barrier from the risk of being struck or crushed by the mobile plant. By its plea of guilty the defendant accepted this was so. 53The offence does not fall into the most serious category of cases. It is undoubtedly the case that the defendant was a safety conscious corporation and had a well developed policy and procedures in place at the time of the incident to manage occupational health and safety. As is often the case in these matters involving large companies that are very safety conscious, the larger agenda regarding safety such as written policies and procedures, appointment of appropriately qualified safety personnel, induction training and the like, is attended to diligently. However, the employer's duty under the Act is to ensure safety and down at the coalface, so to speak, it is sometimes overlooked that what is necessary is a very careful and thorough-going analysis of what could possibly go wrong, with an eye very much to human folly and inattention. Foreseeability and measures to avoid risk 54It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Inspector Maddaford v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 at [88]. As I earlier indicated the defendant knew of the risk and whilst it did not ignore the risk and it did attempt to deal with it, the defendant's system of work to ensure against the risk was inadequate. The steps taken by the defendant after the incident to prevent a recurrence are testimony to the fact there did exist available and feasible measures to avoid the risk. 55As it was stated in Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94]: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequence might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety. ... 56This principle is consistent with s 21A(2)(ib) of the C(SP)Act, which identifies as an aggravating factor, a grave risk of death to another person or persons. In this case, of course, the injury to Mr Pulver was fatal, thereby reflecting a risk of the utmost seriousness. Maximum penalty 57A fundamental consideration in determining penalty is the maximum penalty for an offence: Morrison v Powercoal at [16] and [17]. The rationale for why this is so was explained in Markarian v The Queen at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that: "A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]." It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.... 58In the present case, in light of the defendant's prior convictions, the maximum penalty is $825,000. Prior convictions 59Noting the prior convictions, 21A(2)(d) of the C(SP)Act provides that a record of prior convictions may be taken into account as an aggravating feature. The defendant has seven prior convictions in New South Wales under occupational health and safety legislation. 60How the Court is to approach the question of prior convictions is determined by what was held in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 and Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [25]. In Veen (No 2) it was stated at 477-478: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. 61In Baumer at 57-58 the principle was restated thus: We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. 62In McNaughton, Spigelman CJ, with whom the other members of the Court of Appeal agreed on this point, stated at [15], [25]-[28] and [30]-[34]: [15] It is authoritatively established that the common law principle of proportionality, propounded in Veen No 2, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires. ... [25] The Crown submissions to this Court put forward a cogent case for accepting that prior convictions are relevant to the mens rea element of an offence and are particularly significant in the assessment of the moral culpability of the offender in the commission of the offence for which s/he stands to be sentenced. Nevertheless, such considerations can be taken into account in determining the appropriate level of punishment for the particular offence and for determining where in the spectrum of seriousness of offences of this character, the facts of the case lie. (See R v Way (2004) 60 NSWLR 168 at [85]-[99] and especially at [90]-[93].) However, on the authority of Veen No 2 and Baumer, it is not open to this Court to adopt the approach submitted by the Crown so as to use prior convictions to determine the upper boundary of a proportionate sentence. [26] There is a difficulty with the reference in Veen No 2 to prior convictions 'illuminating' the offender's "moral culpability". Nevertheless, as Howie J stated in Wickham, the majority judgment in Veen No 2 recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. I refer specifically to the reference to an "attitude of disobedience of the law" and to the increased weight to be given to "retribution", "deterrence" (relevantly personal deterrence) and "the protection of society". [27] As the joint judgment in Veen No 2, after noting at 472 that "The principle of proportionality is now firmly established in this country", said at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible." [28] Furthermore, as the joint judgment put it in Weininger v The Queen (2003) 212 CLR 629 at [32]: "A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration." ... [30] Although I agree with Howie J's identification in Wickham of the relevant sentencing principle, I do not agree with his characterisation of s 21A(2)(d). (See Berg supra at [40].) His Honour said that the section appears "on its face" to "indicate that a prior criminal record is a matter of aggravation by making the offence more serious". With respect, I do not agree that the section should be interpreted in that way. There is a distinction at common law between what Callinan J has called "a circumstance of aggravation" and a "matter adverse to an offender". (Weininger supra at [116].) However, Parliament has not used the word "aggravation" in its common law sense. [31] There is a reference to "relative seriousness of the offence" in s21A(1)(c), but it should not be assumed that the word "seriousness" there appearing is a reference to the objective gravity of the offence in the sense that the word has been used in the authorities. Nor, in my opinion, should it be assumed that the words "aggravating factors" in the section should be interpreted as if they were a reference to "objective considerations" only, as those words have been used. [32] Section 21A(1)(c) refers expressly to "any other objective or subjective factor", clearly indicating that the lists of aggravating and mitigating factors in s 21A(2) and (3) encompass both kinds of considerations. Some of the matters listed in s 21A(2) appear to me to encompass matters which, in the terminology that has come to be adopted in the case law are, at least in part, "subjective" rather than "objective", e.g. motive in (h) and offending whilst on conditional liberty in (j). I can see no reason why the reference to prior convictions should not be interpreted as referring to the use of that consideration in the ways authorised expressly in Veen No 2. [33] If Veen No 2 is understood to establish a principle to the effect that prior convictions can never be classified as an "aggravating factor" then, because the principle of proportionality applies to all sentences, s 21A(4) would have the effect of depriving s 21A(2)(d) of any effect. Section 21A(4) should not be interpreted in that way. [34] This consideration reinforces my conclusion that the aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law. 63Thus, prior criminal record is not to be used as an aggravating factor to increase the objective seriousness of the offence warranting a heavier sentence, but it may be used to "show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen (No 2). 64Where a defendant employer has prior convictions in relation to offences that indicate the offender has continued to ignore or recklessly disregard occupational health and safety laws by, for example, consistently failing to guard machinery, or consistently fails to undertake risk assessments or a failure to provide training or supervision is consistently evident, the Court might come to the view that there was a continuing attitude of disobedience warranting a more severe penalty. 65However, where more than one offence is committed by an offender over a period of time, determining whether that manifests a disobedient attitude may depend on examination of a range of factors including such matters as the nature of the risk giving rise to the offences, the nature of the acts or omissions that led to the charges being laid, the nature of the business of the offender, its attitude to health and safety in the workplace, the steps taken by the offender to prevent a re-occurrence of any prior offence, the contribution of others to the offence and the period between offences. 66The Court was not taken to the circumstances of the first six prior offences in respect of which the defendant was convicted and so the Court is unable to determine whether those six offences together with the instant offence demonstrate a course of conduct manifesting "a continuing attitude of disobedience of the law". 67The last offence for which the defendant was convicted occurred in June 2002 and was the subject of a penalty imposed ($22,750) in the Chief Industrial Magistrate's Court on 3 August 2005: Inspector Belley (WorkCover Authority) v Leighton Contractors Pty Ltd. It involved a prosecution for breach of s 8(2) of the Act in relation to risks arising to employees of a contractor engaged by the defendant. 68The circumstances in relation to this offence involved an incident in which an employee of the contractor was crushed by a reversing truck and suffered serious injuries. The particulars of the defendant's failings included a failure to ensure a safe system of work for the task, in that there was a failure to ensure the movement of the vehicle was planned and carried out in safe manner and did not expose non-employees to risk of injury. 69The circumstances that led to the prior conviction in 2005 were quite different to those in the instant case and, of course, occurred eight years before the offence presently before the Court. I note that the Chief Industrial Magistrate questioned whether the incident would have occurred even if the defendant had fully complied with its obligations to ensure safety. I also note following the incident giving rise to the 2005 conviction, the defendant took remedial steps to avoid a re-occurrence of the incident. 70Accordingly, I do not consider the offence warrants a more severe penalty because of any continuing disobedient attitude of the defendant to observing the occupational health and safety laws. However, the fact that the defendant has prior convictions "disentitles it to leniency normally extended to offenders who are not adversely recorded": Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 at [33]. Deterrence 71The Court is required to give consideration in the sentencing process to general and specific deterrence: Capral. Indeed, it was held in that case that both aspects of deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare. ..." (at [74]). 72In relation to general deterrence, I agree with the submissions of the prosecutor that the sentence imposed upon the defendant should reflect the need to deter others in the civil construction industry from failing to take a rigorous approach to ensuring that known risks relating to personnel working around or in the vicinity of mobile plant are appropriately addressed and that adequate systems to address such risks are developed, implemented and complied with. 73In relation to specific deterrence, the prosecutor accepted there was evidence before the Court of the extensive systems that the defendant had in place in relation to safety at the time of the incident and that demonstrated the defendant had a relatively good attitude to safety, notwithstanding its prior convictions. Moreover, the prosecutor accepted the evidence demonstrated that following the incident, the defendant introduced changes to its systems of work in relation to the refuelling of plant and that these changes reduced the risk of a re-occurrence of offences of a similar nature to the one the subject of the present charge. 74The prosecutor submitted, however, that a significant element for specific deterrence should be included, because it is apparent that the defendant continues to operate across a broad range of industries and workplaces in what may reasonably be regarded as hazardous industries and that despite the comprehensive systems in place there was a serious failure to address an obvious and foreseeable risk. The nature of the potential risks to any current or prospective employees of the defendant and contractors engaged are such, it was submitted, that the Court should give specific deterrence considerable weight in the sentencing process. 75 In Capral at [76]-[77] the Full Bench of the Court stated: [76] On the other hand, 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: see Ruby, Sentencing (5th Edition, Butterworths, Toronto, 1999) at 10. The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. ... [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. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 76In my opinion, the prosecutor has not demonstrated any propensity - or predisposition or proclivity - on the part of the defendant to re-offend. The defendant has taken highly commendable steps to ensure there is no re-occurrence of the incident that led to the death of Mr Pulver. Nevertheless, there remains a role for specific deterrence in the penalty because the objective is to deter the offender from repeating the offence, the offence being a breach of s 8(1) of the Act by whatever means that might occur. The defendant is a large corporation that continues to operate in the construction industry, a notoriously dangerous industry, and there is value in including in the penalty an element for specific deterrence "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": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388. 77I should add that if I had found there was a likelihood of the defendant re-offending, the element I would have included in the penalty for specific deterrence would have been much more substantial. Subjective factors 78In relation to the plea of guilty it appears there was some negotiations between the prosecutor and the defendant a consequence of which was that the charge was amended. A plea of guilty was entered in respect of the amended charge except in relation to one particular of the amended charge. The charge was again amended and the defendant pleaded guilty to that second amended charge. 79I have had regard to what I said about the utilitarian value of guilty pleas in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 at [30]-[42]. I consider a discount of 22.5 per cent is appropriate in this case because whilst the guilty plea was entered early it was not at the earliest possible opportunity. 80Section 21A(3)(i) of the C(SP)Act provides that a defendant is only entitled to the benefit of a discount for remorse if evidence is provided of an acceptance of responsibility for its actions, and an acknowledgement is forthcoming of any injury, loss or damage caused. 81The prosecution accepted, and properly so, that the evidence of Mr Duvel demonstrated contrition and remorse on the part of the defendant for the circumstances of the offence. 82The prosecutor also accepted the defendant co-operated fully with the WorkCover Authority throughout its investigation. 83I have already commented on the admirable effort of the defendant following the incident to ensure there is no repeat of what occurred and I have had regard to the broader measures taken by the defendant to improve its occupational health and safety system and processes throughout its business. The defendant should have the full benefit of that effort reflected, to the extent permitted, in the sentence noting that subjective matters are of secondary importance in the sentencing process to the objective matters. 84The evidence also demonstrated that the defendant is a good corporate citizen. Conviction 85The Court accepts the defendant's guilty plea and the defendant is convicted of the offence charged. Victim impact statements 86Present in Court were Mr Pulver's wife, his mother and stepfather, his father, sister brother-in-law and niece. The Court received victim impact statements from Mr Pulver's mother, Ms Deanna Rutter, and his wife Ms Sara Powell. Ms Rutter and Ms Powell read out their statements to the Court. Neither person was required for cross-examination and no submissions were made regarding the victim impact statements. 87Ms Rutter explained how her family was devastated by her son's death and how their lives had been changed forever. She expressed her deep sadness at the fact her son's two children, aged 4 and 2, would grow up without their father. 88Ms Powell told of how her husband went to work one day and never came home. She said how much he loved his children. She said the hardest thing she has ever had to do in her life was sit down and explain to her two children "that their father was not coming home from work, in fact that he would never be coming home." Ms Powell said it was "heart wrenching" and that as young children they viewed their father's death as though he was abandoning them or that he deliberately chose to leave them. 89Ms Powell explained the anxiety and nightmares her children were suffering and how they do not like to be left alone. She described how Fathers' Day was now a real challenge for her children. 90Ms Powell said apart from the emotional loss there were also practical considerations. She now relies heavily on both sets of grandparents to assist her in caring for the children whilst she works and encounters considerable difficulty in continuing with her daily life. 91The Court has expressed its deepest sympathy to Mr Pulver's family. The Court acknowledges the devastating impact that his death has had on them. I am constrained, however, from taking into account the contents of the victim impact statements in coming to a conclusion as to what is the appropriate sentence in this case: R v Previtera (1997) 94 A Crim R 76; R v Mansour [1999] NSWCCA 180. Penalty 92Having regard to all of the relevant considerations I have decided an appropriate penalty in this case is $350,000. Orders 93The Court makes the following orders: (1) The defendant, Leighton Contractors Pty Limited, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $350,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. ********** 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: 12 December 2012