Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Pile v Levira Pty Ltd [2013] NSWIRComm 78 Hearing dates: 26 August 2013 Decision date: 16 September 2013 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: (1)The offence is proven and a verdict of guilty is entered. (2)The defendant is convicted of the offence, as charged. (3)The defendant is fined an amount of $80,000 with a moiety thereof to the prosecutor. (4)The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - truck transport industry - employee injured when crushed by forklift - general deterrence - specific deterrence - measures introduced to minimise and eliminate risks - subjective factors - good corporate citizenship - no prior conviction - plea of guilty - penalty - costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 Morrison v Powercoal (No 3) [2005] NSWIRComm 61 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Category: Principal judgment Parties: Inspector Kevin Pile (Prosecutor) Levira Pty Ltd (Defendant) Representation: Counsel: Mr R Reitano (Prosecutor) Ms P McDonald SC (Defendant) Solicitors: WorkCover Authority of NSW (Prosecutor) Spinks Elphick Ho (Defendant) File Number(s): IRC 483 of 2009 Judgment 1Levira Pty Ltd ("the defendant") conducts a business that provides for the transportation of goods by truck. 2At approximately 2.20am on 13 April 2007, William Gordon McMaster who was employed by the defendant as a truck driver, was seriously injured while undertaking delivery work at a bread depot ("the site") operated by McLeods Traditional Pty Ltd ("McLeods"), whose registered address is 491 Beryl Street, Broken Hill in the State of New South Wales. 3Mr McMaster's injuries were caused when a forklift rolled down a ramp at the site colliding with him and pinning him against a truck trailer. 4As a result of the incident, Mr McMaster received blunt trauma injuries to his abdomen and pelvis area including fractures to his hip, leg and pelvis, penetrating abdominal injuries and right-side soft tissue damage. The charge 5The defendant was charged in an amended application for order with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the OHS Act") by failing "to ensure the health, safety and welfare at work of all its employees, and in particular, William Gordon McMaster, contrary to section 8(1) of the Occupational Health and Safety Act 2000". 6The particulars of the charge were: "1. The risk was the risk of a forklift colliding with a person and crushing them. 2. The defendant failed to instruct William Gordon McMaster that he was not to operate forklifts. 3. The defendant failed to provide training to William Gordon McMaster in the operation of forklifts and particularly training about the need to conduct regular inspections of forklifts to ensure they were safe to operate. 4. The defendant failed to ensure that William Gordon McMaster held a certificate of competency in forklift operation before he used a forklift. 5. The defendant failed to provide a metal ramp in sound condition to allow William Gordon McMaster to wheel bread dollys off his trailer and into the depot. 6. The defendant failed to provide any supervision at all to William Gordon McMaster to ensure that he used a metal ramp to wheel bread dollys off the trailer and into the depot. 7. As a consequence of the corporation's act and omissions, William Gordon McMaster was placed at risk. 8. Further, as a consequence of the corporation's act and omissions, William Gordon McMaster sustained serious injury." 7The defendant pleaded guilty to the offence as charged in an amended application for order at the earliest opportunity. I am satisfied, on the evidence, that the defendant is guilty of the offence, as charged, and that it was appropriate for the plea of guilty to be entered. It follows that this judgment is concerned only with the question of penalty. Statutory provision 8Section 8(1) of the OHS act provides as follows: 8 Duties of employers (1) Employees An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following, so far as is reasonably practicable,: (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." Prosecutor's evidence 9Mr R Reitano of counsel, who appeared for the prosecutor, tendered an agreed statement of facts which provided: "1. The prosecutor is and was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. Levira Pty Ltd of registered address 43 Edwards Street, Norwood, South Australia undertook the business of transportation of goods. 3. McLeods Traditional Pty Ltd ACN 104 780 430 of registered address 491 Beryl Street, Broken Hill, New South Wales, undertook the business of a commercial bread depot and pastry production outlet, at the site of its registered address. 4. On 13 April 2007, William Gordon McMaster was seriously injured at the bread depot operated by McLeods, when a forklift truck rolled down a ramp and hit him, pinning him against a truck trailer. At the time, he was undertaking delivery work at the bread depot operated by McLeods at the site. Mr McMaster was impaled by the right-side tine of the forklift truck and was trapped for about 15 minutes. 5. Mr McMaster was employed by Levira as a truck driver. Background 6. On 13 April 2007 at approximately 2:20am, Mr McMaster arrived at McLeod's depot at to deliver a load of bread. 7. Mr McMaster parked the truck and trailer in front of a concrete ramp and double roller door at the southern end of the building at the site. There was no one else on site at this time. He accessed the main area of the building by using a key that was used by the other drivers of the delivery run. He disengaged the security alarm which gave him access to the depot but not to the office area. 8. Mr McMaster entered the depot and raised the roller door. He walked back down the concrete ramp and pulled the curtains back on the truck trailer. Mr McMaster moved the gate which secured the bread on the trailer and moved a dolly of bread to the side of the truck so that he could gain access to it. 9. There was a Nissan forklift truck in the depot. The key was in the ignition, where it was usually left. 10. Mr McMaster re-entered the building and used the key to start the forklift truck. 11. Mr McMaster then drove the forklift down the concrete ramp, lifted a dolly of bread off the trailer and drove back up the ramp and placed the dolly in the depot. Mr McMaster parked the forklift at the doorway of the depot adjacent to the concrete ramp with the tynes in a raised position. He alighted from the forklift and walked down the ramp to the trailer. Mr McMaster moved another bread dolly and secured it. As Mr McMaster was facing the trailer and turned slightly, he was struck by the forklift, which had rolled down the concrete ramp. The right tyne of the forklift impaled Mr McMaster against the truck trailer where he remained trapped for a period of approximately 15 minutes. 12. At approximately 3am, Jason Cini, an employee of McLeods, arrived for work and was immediately alerted on hearing cries for assistance from Mr McMaster. 13. At the insistence of Mr McMaster, Mr Cini operated the forklift and reversed the forklift off Mr McMaster and reversed into the depot. Mr Cini then rendered assistance to Mr McMaster and telephoned for an ambulance. 14. Mr McMaster was treated by the ambulance officer at the site. He was also treated at Broken Hill Hospital. Once stabilised he was flown to Royal Adelaide Hospital for further treatment. 15. As a result of the incident, Mr McMaster received blunt trauma injuries to his abdomen and pelvis area including fractures to his hip, leg and pelvis. He also sustained a fracture to his right pelvis penetrating abdominal injuries and right-side soft tissue damage. 16. As at the date of the interview with Mr McMaster on 3 July 2007, Mr McMaster was unable to work after the incident. He walked with the aid of a walking stick. SYSTEM OF WORK BEFORE THE INCIDENT 17. Levira had been operating this delivery run 7 days per week for a number of years, using different drivers. Mr McMaster had done the trip numerous times. McMaster had worked for Levira or other companies that were associated with Levira or its director on a casual basis since 2005. 18. Levira did not have any documented procedures for delivering and unloading the bread from trucks at the site. 19. Levira had provided a metal ramp that was to be used by its employees to unload the bread dollys at McLeods. The ramp had to be wheeled from within the depot, down the concrete ramp and lifted up to the edge of the trailer. The bread dollys were then to be rolled down the metal ramp into the depot. The investigation revealed that the metal ramp had not been used for approximately 6 months prior to the incident due to its poor condition. The forklift had been used to unload bread on previous occasions by Levira employees. 20. Mr McMaster did receive some training and instruction about the unloading process by a Levira employee and by the director of Levira, Mr Terry Capper. Mr Capper had previously visited the McLeods premises to observe the process of delivering bread by his employees. The yard foremen and another worker accompanied Mr McMaster when he first started the delivery run to show him the procedures of the delivery run. A supervisor showed him how to use the ramp a couple of years before the incident. 21. Mr Capper stated that he was aware that his employees were using a forklift while delivering bread. Mr Capper stated that Levira had never instructed its employees to use the forklift. 22. There was no supervision by Levira to ensure that Mr McMaster was using the metal ramp while he was undertaking the delivery process on the day of the incident. 23. Mr McMaster had used the forklift on previous occasions at the site. 24. The keys of forklift were kept in the ignition. Mr McMaster had completed the Certificate of competency in 1973 when he worked for State Rail. Levira asked Mr McMaster to provide a Certificate of Competency to operate a forklift on numerous occasions but he did not provide it. 25. McLeods did have a system in place to check for Certificates of Competency to operate a forklift, but this system was applied only to its own employees. The forklift was immediately impounded by the NSW Police Force at Broken Hill after the incident. Geoff Staples, a Technical Officer of TestSafe Australia, conducted an examination of the forklift. Mr Staples provided a report dated 14 May 2007, which identified that the hand brake cable of the forklift was broken. 26. McLeods did not have a system in place to ensure that maintenance checks were conducted on the forklift. The forklift had been purchased second-hand at an auction on 22 February 2006. It had not been inspected prior to this by McLeods and there had been no inspection, maintenance or repairs conducted on the forklift since its purchase. Mr McMaster did not conduct a check of the forklift prior to its use on 13 April 2007. 27. The forklift was used by McLeods' own employees and McLeods was aware that Levira's employees from time to time used the forklift. 28. Levira did not have a formal work health and safety consultation process in place generally. It did have a verbal work health and safety consultation process but no records of this were kept. SYSTEM OF WORK FOLLOWING THE INCIDENT 29 On 3 May 2007, Inspector Keven Pile issued a Prohibition Notice 152950 to cease operation of the forklift until it had been inspected and repaired by a competent person. The forklift was released from NSW Police Force custody in June 2007 but was not returned to the McLeods depot. 30. On 3 May 2007 Inspector Pile issued a number of Improvement Notices including: · 7-130053 to Levira regarding a safe system of work. In response, Levira documented a safe work procedure for delivering and unloading bread. It also had a new metal ramp constructed and installed. · 7-130050 to Levira regarding licensing of forklift operators. In response, Levira improved its existing system of ensuring that employees have a Certificate of Competency or were on a log-book by keeping records of copies of Certificates of Competencies. · 7130047 to McLeod regarding licensing of forklift operators. In response, McLeod implemented a system to ensure that employees have a Certificate of Competency or are on a log-book. McLeods also developed and implemented a system to ensure that unauthorised persons do not access the forklift. · 7130035 to McLeods regarding forklift maintenance. In response, · McLeods implemented a system to ensure that forklifts are inspected, maintained and daily pre-operational checks are conducted and that records of same are maintained." 10The prosecutor also tendered the following documentation: (1)34 colour photographs taken by Senior Constable Ian West on 13 April 2007, Inspector Kevin Pile taken on 19 April 2007 and 5 July 2007 and Mr Geoff Staples of TestSafe Australia taken on 1 May 2007 depicting the scene of the incident, the Nissan Forklift Truck, the ramp provided for unloading bread dollys from the trailer, a new ramp for unloading the bread dollys. (2)NSW Police sketch of the scene of the incident. (3)Document titled "Broken Hill Freight Centre Procedure for Mildura run". Defendant's evidence 11Ms P McDonald of senior counsel, who appeared for the defendant, read an affidavit of Mr Terry Capper, the sole director of the defendant. Senior counsel tendered a current and historical company extract of the Australian Securities and Investments Commission in respect of the defendant. 12Ms McDonald also tendered a two page document obtained from the WorkCover Authority of NSW Licensing Section (WorkCover) titled "No photo no valid expiry no licence: will your current high risk licence be cancelled?" This document related to licences that are required for persons who perform specific plant and equipment operation activities as part of their duties, including forklifts. Relevantly, this document provided: "To meet national standards, a number of older high risk work licences will require conversation and renewal before 31 December 2012. This includes licences issued before 1996, licences issued between 1996 and 2004 without an expiry date, and licences issued with an expiry date but not renewed within 12 months of expiring." 13It was an agreed fact that Mr McMaster had completed a certificate of competency to operate a forklift in 1993 when he worked for State Rail. Evidence of Mr Terry Capper 14Mr Capper stated that the defendant is a service company which employs truck drivers and provides their services to an associated company, Megbuy Pty Ltd ("Megbuy"). On average, the defendant employs about four to five drivers. 15Megbuy operates a freight business and during the period 2002 to January 2013, Megbuy had a contract with Goodman Fielder to deliver bread to premises including those of McLeods. The defendant provided trucks and drivers for these deliveries. 16Mr Capper stated that he first met Mr McMaster in about 2005 when he engaged him to work as a casual driver for the defendant. Part of Mr McMaster's work involved delivering bread to McLeods. Mr McMaster became a permanent employee on 12 April 2007, the day before the incident. 17When Mr Capper first heard about the incident, he stated that he was extremely upset that Mr McMaster had been badly injured. He immediately travelled to McLeods where he spoke with Mr Jason Cini, an employee of McLeods, who informed him that Mr McMaster was in hospital. He attended the hospital but was unable to speak to Mr McMaster as he was undergoing surgery. He subsequently visited Mr McMaster on several occasions to check on his recovery. This included visiting Mr McMaster while he was in Adelaide Hospital. 18While Mr McMaster was still recovering, Mr Capper offered him a job in whatever capacity he wanted with the defendant. Mr McMaster refused this offer as he wanted to fully recover before returning to work. During his recovery, he often attended the defendant's premises and talked with Mr Capper and other drivers. 19Mr Capper stated that he remained friends with Mr McMaster after the incident and often visited him as he did not live far from him. Over the past few years he has observed Mr McMaster driving a Basin Sands Logistics truck. He said he would give Mr McMaster a wave and he would wave back. 20Mr Capper deposed that earlier in the week of 26 August 2013 he telephoned Mr McMaster and had a discussion with him as follows: "Capper: Hi Gordon, how are you? McMaster: I am fine. Capper: Are you still working for Basin Sands Logistics? McMaster: Yes, I have been working full time there for three years now. Capper: That's what I thought. So when did you start working there? McMaster: Since June 2010, and I am loving it. Capper: I had to ask because the sentencing of Levira in respect of the accident is coming up. McMaster: I see. Tell everybody that I am fine and I am not unhappy with anybody at all. I feel great." 21Mr Capper acknowledged on behalf of the defendant, that it had breached the OHS Act and failed to keep Mr McMaster safe while at work. The defendant accepted its responsibilities for these failures, as reflected in the entry of its plea of guilty. On behalf of the defendant, Mr Capper expressed his sorrow that the incident occurred and that Mr McMaster was injured and suffered as a result of the injuries he sustained. 22Before the incident in 2007, the defendant had no documented or formalised OHS procedures or systems. However, Mr Capper stated that there were well established informal OHS procedures in place. He always emphasised to the defendant's employees that safety was the number one priority. Mr Capper ensured that all employees were given on the job training under close supervision by his assistant manager, Mr Brendon Buyrn, or by an experienced driver until they demonstrated competence to perform the work safely. All employees were required to watch and report anything dangerous. He also ensured that all equipment used by the defendant's employees were safe and well maintained. 23The defendant keeps a logbook known as the "Plod Book" in which drivers were required to enter any complaints about the functioning and/or safety of vehicles and equipment. Any problem no matter how small was recorded in the Plod Book which Mr Capper checked regularly. He ensured that all reported problems were addressed. He stated that he was in constant communication with the defendant's employees and spoke to them in informal settings on a daily basis, where they maintained a dialogue concerning workplace safety. Mr Capper stated that he was extremely concerned about the safety of employees and provided counselling and warnings to any employees if they were ever acting in an inappropriate or dangerous manner. 24Mr Capper stated that whilst there was no formalised OHS procedures, he was "always strict concerning the use of forklifts". He made sure that all employees required to drive a forklift held a current forklift licence prior to employing them. He also required those employees to demonstrate their skills and competence to drive a forklift under close supervision before permitting them to operate one alone. Mr Capper was confident in Mr McMaster's competence to safely drive and use a forklift after having observed him driving and using a forklift. He personally checked all employees forklift licences. The only forklift licence he was unable to sight was that of Mr McMaster. 25Mr Capper stated that on numerous occasions he asked Mr McMaster to provide him with a copy of his forklift licence. On each occasion Mr McMaster said "I will go to State Rail and get a copy" or "State Rail is still looking for the paperwork". 26In respect of the unloading of bread dollys at McLeods, Mr Capper stated that the defendant provided a metal ramp for drivers to use while unloading dollys of bread. The metal ramp was approximately five metres in length. It was constructed from aluminium and steel. It was designed to be manoeuvred by one man and had a wheel at one end for this purpose. The metal ramp was used to span the concrete driveway between the coaming rail of the truck and McLeods' working area. This avoided the need for drivers to unload dollys to the ground and then push the dollys up the concrete driveway into McLeods' building. The high end of the metal ramp was placed against the side of the truck's coaming rail and the low end placed on the flat surface within the building. The drivers were required to roll dollys from the tray of the truck down the metal ramp and onto the flat surface inside McLeods' building. 27Mr Capper said that from time to time the defendant's drivers informed him that there were some problems with the metal ramp. Whenever this happened, a mechanic was dispatched to McLeods to remedy the problem. Over time the metal ramp was strengthened and guard rails added. 28To the best of Mr Capper's knowledge, at the time of the incident, there was no unresolved issues concerning the metal ramp that had been reported to the defendant. Mr Capper stated that at no time did he ever instruct the defendant's employees to use a forklift at McLeods. He always encouraged the defendant's employees to use the metal ramp for unloading bread. However, he was aware that the defendant's employees sometimes did use a forklift at McLeods instead of the metal ramp because using a forklift required far less physical effort. He was not informed by anyone from McLeods that the defendant's drivers should not use the forklift. Furthermore, he was not informed by McLeods that the forklift had any defects. 29After the incident, Mr Capper stated that Inspector Pile from WorkCover served improvement notices on the defendant, all of which the defendant fulfilled by documenting the previous undocumented safe work procedures that had been taught to the employees. The defendant also provided a new metal ramp to replace the previous one. Mr Capper annexed to his affidavit a document titled "Broken Hill Freight Centre Procedure for Mildura Run" and a document titled "Forklift Procedures". Relevant principles 30The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: "[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above 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.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t 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" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. 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 consequences 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: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' " Consideration 31As can be observed from the principles set out above, the primary consideration in sentencing requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence. 32Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offence, it is relevant to set out the important matters. The risk in this matter was the potential for a forklift to collide with a person and cause a crush injury. The risk arose as a result of the defendant failing to instruct Mr McMaster that he was not to operate the forklift at the site. 33The defendant also failed to provide training to Mr McMaster to operate the forklift, particularly in respect of the need to conduct regular inspections of any forklift to ensure it was safe to operate. In addition, the defendant failed to ensure that Mr McMaster held a certificate of competency in forklift operations before he used the forklift. The conclusion to be drawn from the WorkCover licensing documentation is that licences issued before 1996, which would include the licence issued to Mr McMaster, continued in force until 31 December 2012. 34Ms McDonald acknowledged that there was a distinction between not holding a certificate of competency and not ensuring that someone has a certificate of competency. The defendant has admitted that it never saw Mr McMaster's copy of the certificate of competency, although Mr Capper's evidence was that on numerous occasions, he asked Mr McMaster for a copy of the certificate and Mr McMaster did not provide it to the defendant. 35Mr Capper's evidence also demonstrates that the defendant had an informal system of work that required any employee who was to operate a forklift to be licensed and to provide evidence of that licence. 36In light of this evidence, I propose to proceed to sentence on the basis that Mr McMaster had a certificate of competency. However, it was never actually produced to the defendant. 37Mr Capper's evidence was that if any of the employees were required to drive a forklift, they would be supervised and observed driving and operating it to ensure that they had the competence and expertise required. Although the defendant's OHS system was undocumented, the defendant required observation and supervision of employees to ensure that they were competent to drive a forklift. In my view, in respect of this particular, the criminality or the culpability of the defendant in respect of this omission is minimal. 38The final two particulars deal with a failure to provide a metal ramp in sound condition to allow the bread dollys to be moved from the truck to the depot and a failure to provide supervision to ensure that Mr McMaster used the metal ramp to wheel the bread dollys off the trailer and into the depot. The evidence establishes that a metal ramp was provided and the primary system of work was the utilisation of the metal ramp to remove the bread dollys from the truck. 39Mr Capper's evidence was that he was aware that from time to time that the defendant's employees "sometimes did use a forklift at McLeods instead of the metal ramp because using a forklift required far less physical effort". 40The defendant had a system in place that enabled any complaint about the functioning and/or safety of vehicles, or concern with equipment to be written in the "Plod Book". Mr Capper's evidence was that if issues arose in respect of the ramp, a mechanic would be despatched to repair the ramp. The defendant has admitted that the ramp was not in sound condition on 13 April 2007. 41In respect of the failure to provide any supervision to ensure the metal ramp was used to wheel bread dollys off the trailer, the evidence is that the defendant had an informal undocumented system which involved training the employees in this work. This included Mr Capper observing and checking that the employees were not exposed to risks to their health and safety. The deficiency in this system is highlighted by the steps taken after the incident when the defendant introduced a written procedure for delivering the bread to McLeods and also a written procedure in respect of the operation of a forklift. 42The prosecutor submitted that the risk, in addition to the failure to provide training to Mr McMaster in the operation of forklifts gave rise to the risk of an employee being crushed by a forklift through its incorrect operation. 43The prosecutor submitted that the risk of the forklift colliding with a person and crushing them, was obvious and foreseeable. 44Ms McDonald submitted the defendant had no knowledge about the broken handbrake on the forklift and that it was not reasonably foreseeable that the handbrake would be broken and not identified and subsequently fixed by McLeods. The defendant also had, in my view, a reasonable expectation that the forklift would not be provided in a dangerous state by McLeods. It was McLeods' lack of maintenance that was the primary cause of the incident and the risk to health and safety. In addition, McLeods, clearly, made the forklift available to employees of the defendant as the key was left in the ignition. McLeods were also aware that the defendant's drivers were using the forklift, as was the defendant (see SAF 21). In such circumstances, the defendant should have provided training to its employees in respect of the need to carry out regular inspection of the forklift to ensure it was safe to operate. This would have identified the defect with the handbrake. It should have also ensured the metal ramp was in sound condition because if it was not, it was foreseeable that employees would use some other means to unload the dollys of bread, for example, a forklift. 45Taking into account these circumstances of this particular offence, I find that the risk was therefore reasonably foreseeable. 46The foreseeability of the risk is a factor to be taken into account when assessing the level of culpability of the defendant: Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [81] - [82]; (2000) 99 IR 29. 47An offence may be characterised as a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken in circumstances where such measures were available and feasible: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476. 48It is clear from the evidence, that the conduct of both the defendant and McLeods contributed to the incident. 49Ms McDonald submitted that from the defendant's driver's perspective, the forklift was used in the early hours of the morning before workers arrived at McLeods' depot. The only person to be placed at risk from the defendant's perspective would be the driver. 50Counsel conceded that the risk to its employee was a serious risk, but observed that Mr McMaster had recovered from his injuries and that he is now working full time driving a truck for Basin Sands Logistics. 51Pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 , the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: see Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18] and Capral Aluminium Ltd at [94] - [95]. 52Taking these factors into account, the offence falls towards the mid-range of seriousness. 53It is appropriate in respect of this incident and this prosecution to consider the contribution of another entity to the risk to safety in the assessment of penalty. The principle is that where another person has contributed to a detriment to safety, the question remains, in assessing penalty, what are the specific culpabilities of the defendant. The statutory obligations placed on the defendant is not diminished by the notion that other entities may have contributed to the risk to safety. 54In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125, Walton J, Vice-President, explained the approach to be taken at [242]: The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]). 55The prosecutor submitted that the culpability of the defendant and McLeods was "broadly equal in terms of the omissions". In my view, for the reasons set out earlier, at particularly [44], this defendant's culpability is greater than the contribution of McLeods to the generation of the risk. General deterrence 56As to general deterrence, I consider it is appropriate in this case to once again draw attention to the need for employers, particularly small to medium sized employers in the trucking industry where goods are loaded and unloaded, to be constantly vigilant of the need to ensure that employees are not exposed to risks to their health and safety through operating and transporting goods on trucks. Any machinery used in this industry, for example forklifts, should be the subject of periodic inspections with preventative maintenance systems put in place so that the risk of serious injury and/or death is substantially reduced. 57Ms McDonald submitted that in respect of general deterrence, its importance has not been highlighted in this case, as it has been in other cases, by a demonstration that the contravention involved a failure to observe specific provisions of a statute or to draw attention to particular problems arising in a particular industry: Morrison v Powercoal (No 3) [2005] NSWIRComm 61 (at [101]). I accept this submission. I include an element in the penalty for general deterrence. Specific deterrence 58In relation to specific deterrence, I accept, in light of the evidence relied upon by the defendant, that this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. 59I note that subsequent to the incident, the defendant initiated a number of measures to minimise and/or eliminate the risks associated with the unloading of bread. These include documenting the safe system for the unloading of the bread, the construction and installation of a new metal ramp and the improvement of its system of keeping records of employees' certificate of competency to drive forklifts. AS the defendant is still operating, I include a small component in the penalty for specific deterrence. Subjective factors 60The relevant subjective factors pertaining to this defendant in respect of the provisions of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 include: "(f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but 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), ... (k) a plea of guilty by the offender (as provided by section 22), ... (m) assistance by the offender to law enforcement authorities (as provided by section 23)." Good character 61The defendant has been in operation for many years and has no prior convictions although it operates in an inherently dangerous industry. The OHS systems that were in place prior to the incident and the changes that occurred after the incident demonstrate that it has a history of very good industrial citizenship. This is an important matter to be taken into account on sentence: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [161]. 62I find that the defendant is a good corporate citizen. 63The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: "We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area." Remorse 64Mr Capper expressed the defendant's concern and remorse for the incident. The defendant responded to the incident with extreme concern and formally through its director. Its contrition is further demonstrated by the early indication of a plea of guilty to the amended application for order and by the assistance provided to Mr McMaster. Plea of guilty 65The defendant entered a formal plea of guilty to the amended charge at the earliest possible opportunity: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339. The defendant is therefore entitled to a discount of 25 per cent in accordance with the principles found in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 66I find that the defendant fully co-operated with the WorkCover Authority of New South Wales during its investigation of the incident. Parity 67WorkCover has brought a prosecution pursuant to s 8(2) of the OHS Act against McLeods who have pleaded guilty to the charge. The sentencing hearing followed the conclusion of this matter. 68The principle of parity therefore arises and is applicable in this matter. It requires the court to consider whether there are any appreciable differences in the culpability of the defendants: Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160. 69The principle of parity was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302 as follows: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." 70Consistent with the parity principle, it is therefore appropriate for the court in this matter to make reference to the different roles and responsibilities of the offenders. In R v Sukkar [2011] NSWCCA 140, it was observed at [36]: "To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson & Ors v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74])." 71In my view, the defendant's culpability is greater than that of McLeods. This defendant was aware that its employees were using the forklift at the site. However, it took no steps to ensure that its employees were trained to carry out inspections of the forklift to ensure that it was in safe working order. It should have also ensured that the metal ramp used by the employees was in sound working order. Maximum penalty 72The maximum penalty in respect of the defendant is $550,000. Taking into account the appropriate seriousness of the offence, the strong subjective factors referred to earlier and applying the principles of parity, I impose a fine of $80,000. 73The prosecutor seeks a moiety and costs which I propose to grant. Orders 74I make the following orders: (1)The offence is proven and a verdict of guilty is entered. (2)The defendant is convicted of the offence, as charged. (3)The defendant is fined an amount of $80,000 with a moiety thereof to the prosecutor. (4)The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, 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: 16 September 2013