Industrial Court New South Wales Medium Neutral Citation: Nash v Daracon Mining Pty Ltd [2015] NSWIC 14 Hearing dates: 8 September 2015 Date of orders: 19 October 2015 Decision date: 19 October 2015 Before: Walton J, President Decision: In all the circumstances, and for the reasons given, the Court makes the following orders: (1) The defendant is convicted of the offence as charged; (2) The defendant is fined the sum of $80,000 with a moiety to the prosecutor; (3) The defendant shall pay the costs of the prosecutor as agreed or, in default, as assessed for these proceedings. Catchwords: OCCUPATIONAL HEALTH AND SAFETY — prosecution under s 8(2) of the Occupational Health and Safety Act 2000 — plea of guilty – sentencing — fatal incident – several entities involved in operating a mine – defendant engaged in removal of reject material from mine site for disposal — reject material loaded into trucks by opening hydraulic gates to release it from base of storage Bin – loading cycle involved programmable electronic control program to facilitate correct positioning of truck when load released – worker killed when 10 tonnes of reject material was released onto cabin of truck — agreed statement of facts – proceedings delayed – coronial inquiry – doubt as to the authority of the prosecutor – victim impact statement received and acknowledged – relevant principles — objective features – objective seriousness of offence – defendant failed to protect contracted drivers against risk of being injured or killed by material falling onto them through the roof of the cabins of their trucks during a loading cycle — failure to ensure that contract drivers adopted a procedure by which it was not possible to activate the control program of the Bin so as to release reject material from the Bin when the cabin of a truck and dog combination was positioned beneath the Bin gates - defendant failed to ensure that the routine inspection and maintenance of the Bin included routine inspection and cleaning of the positioning sensors – measures could have been taken to obviate risk — defendant should have required a functional safety assessment of the possible effects of change to using truck and dog combinations with the Bin – defendant should have ensured work method adopted by contract drivers prevented cabin of trucks being located beneath the Bin when Bin gates were permitted to open – defendant should have ensured electronic sensors were inspected and cleaned as agreed – aggravating factors — fatality manifests the seriousness of the risk - risk foreseeable – simple remedial measures available - maximum penalty – general deterrence - continued risk as operating in dangerous industry - specific deterrence – mitigating factors – safety system was in place – risk not known or actually foreseen by defendant - risk partially outside the control or influence of the defendant – defendant was informed system was 'failsafe' – inappropriate to undertake process of apportionment or assess culpability of other entities – subjective features – steps taken since the incident - assistance to family of deceased worker - counselling assistance to injured workers - expression of contrition and remorse - cooperation with investigation – discount for plea - first offence - good industrial character – impact of delay — penalty imposed — moiety Legislation Cited: Coal Mine Health and Safety Act 2002 Coal Mine Health and Safety Amendment (Validation) Act 2013 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99 Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993) Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 682 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) IR 467 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 Department of Mineral Resources (NSW) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 El-Afchal v R [2015] NSWCCA 112 Inspector Christensen v Lend Lease Engineering Pty Limited (formerly Abigroup Contractors Pty Limited) [2014] NSWIRComm 42 Inspector Dall v Daracon Contracting Pty Ltd [2005] NSWIRComm 149 Inspector Dall v Ullrich [2012] NSWIRComm 87 Inspector Estreich v Hadfield [2012] NSWIRComm 88 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 Inspector Wade V Goldspring Earthmoving Pty Ltd [2011] NSWIRComm 106 Inspector Wade v Sid Fogg & Sons Pty Ltd [2009] NSWIRComm 162 Markarian v The Queen (2006) 228 CLR 357 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003)130 IR 364 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 R v Fahda [1999] NSWCCA 267 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Todd (1982) 2 NSWLR 517 WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) v BHP Company Ltd (1998) 83 IR 427 WorkCover Authority (NSW) v Coleman (2004) 138 IR 21 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 WorkCover v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254 Category: Sentence Parties: Jennifer Ann Nash (Prosecutor) Daracon Mining Pty Ltd (Defendant) Representation: Counsel: J V Aguis SC and B Clark (Prosecutor) M P Cahill (Defendant) Solicitors: Crown Solicitor's Office (Prosecutor) Turnbull Hill Lawyers (Defendant) File Number(s): IRC 134 of 2011 Judgment 1. These proceedings involve a prosecution instituted by Mr Robert William Regan on 15 February 2011, for whom Ms Jennifer Ann Nash ('the prosecutor') was substituted by order of this Court on 7 March 2012, against Daracon Mining Pty Limited ('the defendant'). 2. The prosecution arose following an incident at the Ravensworth Underground Mine near Singleton, New South Wales ('the mine') on 18 February 2009 resulting in the death of a subcontractor of the defendant, Mr David Oldknow ('the incident'). 3. Before discussing the background of the incident, I propose to set out the entities involved in the operation of the mine with a view to providing the organisational context of the incident, including the defendant's place in those organisational arrangements. 4. The defendant is a company whose registered office is located at 11-17 James Street, Wallsend, NSW. The business conducted by the defendant involved the provision of transport services in the mining industry, including the haulage of materials, such as coal and mining waste, by truck both on-road and off-road. The defendant was part of a larger corporate group, the Daracon Group, which, through 12 corporate entities, provided a range of civil engineering services. 5. Resource Pacific Pty Limited ('RPPL') was the leaseholder of the mining lease incorporating the mine and associated surface works. RPPL was a wholly owned subsidiary of a holding company called Resource Pacific Holdings Limited ('RPHL'). 6. RPPL was also the nominated operator and the day-to-day manager of all coal operations conducted at the mine pursuant to the Coal Mine Health and Safety Act 2002. The statutory responsibilities in relation to the mine arising under that Act were, therefore, the province of RPPL. 7. Prior to March 2008, RPPL contracted management of the surface works associated with the mine to Coal Mining Operations & Processing Pty Ltd ('CMOP'). In accordance with that contract, CMOP became the nominated operator and day-to-day manager of the Ravensworth Coal Preparation Plant ('RCPP'). The RCPP was the location to which raw coal extracted from the mine was transported for treatment. During that treatment, coal was separated from reject material (that is, waste left after the raw coal was processed), which was subsequently disposed. 8. After a takeover in March 2008, RPPL and RPHL became wholly owned subsidiaries of Xstrata Coal Pty Ltd. At that time, the contract with CMOP was terminated and RPPL was returned as the nominated operator and day to day manager of the surface works associated with the mine, including the RCPP. At the date of the incident, RPPL remained the leaseholder of the mine and the nominated operator and day to day manager of all coal operations conducted therein. 9. I turn, now, to the background of the incident. 10. Reject material which was aggregated in the RCPP was required to be removed from the mine for disposal. When such material was too large to be pumped out of the RCPP, it was transported via conveyor to 'Reject Bin 801' and onto a 500 tonne overhead storage bin known as 'Reject Bin 802' ('the Bin') for storage and, ultimately, removal. 11. Reject material was released from the base of the Bin and loaded into trucks to be hauled from the mine. The loading cycle consisted of positioning a truck in the loading bay beneath the Bin such that the programmable electronic control program was primed and a remote control device could be activated to open the hydraulically operated Bin gates for a predetermined period. In that manner, reject material was released through the Bin gates via a chute into the truck. The reject material was then hauled from the mine along a private road ('the haulage road') and disposed of at a dump site known as 'the void' approximately 3.28 km away. 12. The programmable electronic control program ('the control program') was primed when a driver drove his or her truck underneath the Bin, sequentially passing three sets of opposed photoelectric sensor cells on either side of the loading bay driveway (the 'truck in position', or 'TIP', sensors) and, in so doing, interrupting the signal between each set of TIP sensors which sent electrical signals to the program. Those signals were used as an input to the control program to determine when a truck was in position for loading which, by way of an electronic software logic system, then permitted the gates to open. The signals also operated a set of traffic lights at each end of the driveway that conveyed to the drivers the readiness of the chute to deliver the load. This system was designed to facilitate the correct positioning of the trucks in the loading bay beneath the Bin. 13. Once correctly positioned, the drivers manually activated the Bin gate by pressing a release button on the remote control device which was carried in the cabin of the truck. Upon activation, about 10 tonnes of reject material would fall from the Bin through the chute into the truck. There were three separate drops per load: first into the tray of the truck, then, secondly and thirdly, into the dog trailers behind it (totalling 30 tonnes of material). 14. The Bin was originally designed and commissioned for use in 1983 by Elcom (a previous mine owner/operator) for use with large, off-highway mine haulage trucks ('mine haulage trucks'). Mine haulage trucks are, in standard practice, equipped with overhead fall protection. 15. In 2005, in its role as leaseholder and nominated operator of the mine, RPPL commenced planning and undertook an upgrade of the RCPP. As nominated operator and day-to-day manager of the RCPP, CMOP managed the upgrade of the reject handling system, including the Bin, separately. 16. CMOP retained an electrical engineering and project management company, Demat EPM Pty Ltd ('Demat') to oversee the design, specification and conduct of that upgrade. The planning and assessment of the upgrade proceeded upon the basis that the trucks being used to haul reject material were mine haulage trucks. (Demat was also involved in the broader upgrade of the RCPP.) 17. Demat subcontracted Primatech Pty Ltd ('Primatech') to design, write and commission the code and code logic used to control the functions automated through the control program. In conformity with the original design of the Bin, that design was intended for use with mine haulage trucks. 18. Demat also subcontracted the on-site supervisory work to ZMD Engineering Pty Ltd ('ZMD'), the majority of which work involved field commissioning of those electronic systems. 19. In or around June 2007, Demat, ZMD and Hardy Bros Mining and Construction Pty Ltd ('Hardy Bros'), a company retained by CMOP to undertake haulage of the reject material, trialled the upgraded automated electrical control system for the Bin with mine haulage trucks. 20. Following that trial, however, the company that controlled the haulage road from the Bin to the void, Macquarie Generation, notified RPPL and CMOP that mine haulage trucks were not permitted to use the road. Subsequently, in or around July 2007, CMOP obtained permission to use truck and dog combinations instead (specifically, a rigid on-road truck with a tray towing two dog trailers which did not possess overhead fall protection). 21. In late 2007, the defendant was retained by RPPL on a month-to-month basis to remove reject material using truck and dog combinations (in place of Hardy Bros). The defendant undertook the performance of that work through employed drivers and by subcontract to independent transport companies and separate owner/drivers on an hourly rate. 22. At that time, the supervisor then assigned by the defendant to oversee the haulage works at the site, together with a number of its drivers, including Mr Oldknow, participated in the commissioning of the Bin for use with truck and dog combinations. During that process, the defendant's employed manager and supervisor, as well as its drivers, were informed that the Bin gates could not open during a loading cycle unless a truck and dog combination was located in one of three correct positions in the loading bay beneath the Bin. Nevertheless, the drivers were instructed not to use the remote control to activate the Bin gates unless their truck was in one of those positions. 23. In or about July 2008, Primatech changed a single sequence in the control system code, or software, namely, the Reject Bin Gate Open Start Sequence, to enable the detection and loading of truck and dog combinations from the Bin in order to accommodate the change in trucks that had occurred. 24. Prior to that change, the computer code logic required all three sets of TIP sensors to be interrupted simultaneously for the control program to be primed to permit the Bin gates to open. When combined with the field position of the three sets of TIP sensors, this requirement precluded the Bin gates opening whilst the cabin of a truck was beneath the gates. During the investigation following the incident, it was discovered that the amendment made to the computer code to accommodate truck and dog combinations occasioned a flaw in the logic associated with the computer code such that it did not require all three TIP sensors to be interrupted at the same time to open the Bin gates but, rather, that each sensor merely had to be interrupted at some point during the loading cycle. Once each sensor was interrupted, the Bin gates were able to be opened when the remote control was activated, regardless of whether the truck was positioned correctly so as to interrupt all sensors simultaneously. 25. Thus, after the change, so described, the Bin gates were able to open in circumstances where a truck interrupted each sensor when a driver drove through the loading bay, but overshot the first loading point and reversed back beyond the correct position such that one set of TIP sensors was uninterrupted (as each TIP sensor had already been interrupted and the control program was, consequently, primed). In those circumstances, if a driver pressed the remote control to open the Bin gate, a 10 tonne load of reject material could be released despite the truck being incorrectly positioned to receive it. 26. On 17 February 2009, Mr Oldknow commenced a night shift at 6:00pm hauling reject material from the Bin to the void. Mr Noel Fairley, Mr Gary Sales and Mr Geoffrey King were also working as subcontractors to the defendant removing reject material from the mine on that night. 27. At approximately 2:30am on Wednesday 18 February 2009, Mr Oldknow was fatally injured when several tonnes of reject material fell onto and though the cabin roof of the truck he was driving as the Bin gate opened when his truck was incorrectly positioned beneath the Bin. It was common ground that the Bin gate opened while Mr Oldknow's truck was not in a correct position because he used a practice that he and other drivers had, unbeknownst to the defendant, adopted on previous occasions to complete the loading cycle, by which he drove his truck past the correct position in the loading bay and then reversed back into position. That practice allowed the Bin gates to be opened despite Mr Oldknow having reversed back beyond the correct position. In the result, in approximately 2 seconds, 10 tonnes of material was released through the chute, the majority of which was delivered onto the cabin of the truck. The Charge 1. As a result of the incident, the defendant was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ('the Act') which was set out in a further amended application for order in the following terms: I, JENNIFER ANN NASH, of the Department of Trade and Investment, Regional Infrastructure and Services of New South Wales, 516 High Street, Maitland in the State of New South Wales, a government official (Investigator) appointed under s 145(1)(d) of the Coal Mine Health and Safety Act 2002 and thereby by s 47B of the Occupational Health and Safety Act 2000 taken to have been appointed as an inspector under the Occupational Health and Safety Act 2000 and authorised by s 106(1)(c) of that Act to institute these proceedings, CHARGE that: DARACON MINING PTY LTD, ACN 117 236 272 a company whose registered office is located at 11-17 James Street, Wallsend, NSW ("the defendant"), on 18 February 2009 at its place of work at the Ravensworth Underground Mine, near Singleton in the State of New South Wales, which was a coal workplace within the meaning of the Occupational Health and Safety Act 2000 being a place of work to which the Coal Mine Health and Safety Act 2002 applies, 1. was an employer, and 2. failed to ensure that people other than its employees were not exposed to risks to their health or safety, 3. arising from the conduct of its undertaking, 4. while they were at its place of work. contrary to s 8(2) of the Occupational Health and Safety Act 2000. AND AS A RESULT The health and safety of David Oldknow, Noel Fairley, Gary Sales and Geoffrey King was placed at risk, and David Oldknow was killed when he was struck by material falling onto and through the roof of his truck cabin. 1. The particulars of the charge were specified as follows: Risks to health and safety 1. On the night shift from 6:00 p.m. 17 February 2009 to 6:00 a.m. 18 February 2009 Mr Oldknow and his fellow workers Noel Fairley, Gary Sales and Geoffrey King were engaged in the conduct of the defendant's undertaking at the defendant's place of work when driving truck and dog combinations under a large loading hopper known as Reject Bin 802 located within the Ravensworth Underground Mine mining lease area, near Singleton in the State of New South Wales, for the purpose of loading approximately 30 tonnes of reject delivered, in three drops, from Reject Bin 802, and then, deliver the reject to another location. 2. Mr Oldknow and his fellow workers were at risk of being injured or killed by material falling onto them through the roof of the cabins of their truck and dog combinations if, during a loading cycle, the cabin of a truck and dog combination was beneath the loading chute of Reject Bin 802. Failures of the defendant 3. The defendant failed to ensure that it was not possible to activate the programmable electronic control program of Reject Bin 802 so as to open the loading gates of Reject Bin 802, thereby releasing reject from Reject Bin 802, when a truck and dog combination was located in the loading bay underneath Reject Bin 802 with the cabin of the truck beneath the Reject Bin 802 loading gates. 4. The defendant failed to ensure that the routine inspection and maintenance program conducted by the owner/operator of Reject Bin 802 included the routine inspection and cleaning of the Truck in Position or TIP sensors located beneath Reject Bin 802 so as to prevent the usual operation of the sensors from becoming blocked by dirt or other contaminants. Steps which the defendant should have taken 5. Prior to permitting its workers to commence work on site using truck and dog combinations to load material from Reject Bin 802, the defendant should have required the owner and/or operator of Reject Bin 802 to undertake a functional safety hazard and operability analysis in relation to the use of truck and dog combinations in combination with Reject Bin 802 and in particular, the following: (a) an analysis of any modifications to the program software and logic, required to accommodate the use of truck and dog combinations in combination with Reject Bin 802; (b) an analysis of any modifications to the physical layout of Reject Bin 802 and its associated componentry, in particular, the location of the Truck in Position or TIP sensors required to accommodate the use of truck and dog combinations in combination with Reject Bin 802; (c) implementing an equipment inspection and maintenance program in relation to the Truck in Position or TIP sensors so as to ensure that the TIP sensors functioned within the Programmable Electronic Control Program for Reject Bin 802, in a manner which accorded with the programmable electronic control program for Reject Bin 802's system logic and design; and (d) an analysis of the operating procedures to be adopted in relation to the use of truck and dog combinations in combination with Reject Bin 802 so as to ensure they were safe and without risk to health. 6. The defendant should have ensured that the work method or standard operating procedure for the loading of truck and dog combinations with reject from Reject Bin 802 prevented the cabin of any such truck and dog combination from being located underneath Reject Bin 802's loading gates when the logic conditions imbedded in the software component of the programmable electronic control system for Reject Bin 802 necessary to permit Reject Bin 802's gates to open were satisfied. 7. The defendant should have ensured that the routine inspection and maintenance program conducted by the owner/operator of Reject Bin 802 included the routine inspection and cleaning of the Truck in Position, or TIP sensors, located in the loading bay under Reject Bin 802. 1. The defendant pleaded guilty to the charge in the further amended application ('the amended charge'). Agreed Statement of Facts 1. An agreed statement of facts was tendered by the parties. It is attached to this decision as Annexure A. Course of the Proceedings 1. It is convenient to pause at this juncture to outline the course of proceedings in this matter and, in particular, to discuss the significant delay associated with the same. 2. First, it should be noted that RPPL was charged with breaches of ss 8(2) and 10(2) of the Act arising from the incident (Matter Numbers IRC 135 and 136 of 2011). The prosecution of those charges was originally listed concurrently with the present proceedings, but ultimately proceeded by way of a separate defended hearing which is listed for trial in 2016. 3. As noted above, the instant proceedings were commenced by an application for order to appear before this Court filed by Chief Inspector Robert Regan on 15 February 2011 ('the original application'). On 16 February 2011, Marks J ordered that, pursuant to s 276(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996, the defendant appear before the Court to answer to the charge. That order was served on 18 February 2011 in accordance with Industrial Relations Commission Practice Note No. 20. 4. However, an Inquest into the death of Mr Oldknow was ordered by the Deputy State Coroner, his Honour Magistrate Mitchell, and set for hearing from 21 May to 1 June 2012. At the first appearance before the Deputy Industrial Registrar, Ms Lesley Hourigan, on 29 March 2011, counsel for the defendant, Mr M P Cahill, informed the Court of that coronial Inquest. 5. In that light, a notice of motion was filed on 7 November 2011 by which Mr Regan sought that Practice Note No. 20 be suspended in these proceedings and that a timetable for the progress of the prosecution be set by the Court. Ultimately, on 17 November 2011, I determined, with the consent of the parties, to await the conclusion of the coronial Inquest before proceeding with this matter. 6. On 7 March 2012, as earlier mentioned, the Court made an order substituting Ms Nash as the prosecutor (as she was the new Director, Mine Safety Performance in the Department of Trade, Investment, Regional Infrastructure and Services of New South Wales). An amended application for order was filed to reflect that change on 15 March 2012 (but was otherwise in the same terms). 7. In July 2013, an issue arose as to the prosecutor's authority to prosecute in unrelated proceedings: see Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 at [24] to [28]. The doubt cast upon the prosecutor's authority in those proceedings was predicated upon a contention that the authorisation by which the originating prosecutor, Mr Regan, was appointed as a prosecutor was invalid. The implications of that issue were significant since, as Boland J noted in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 (at [26]), "[i]f that appointment was invalidly made, prima facie Mr Regan had no authority pursuant to that appointment to institute proceedings against the defendants". 8. As the present proceedings were instituted by Mr Regan as prosecutor, and were potentially possessed of similar legal issues, it was determined that they should await the adjudication of that issue before progressing. That course was taken in order to avoid the defendant entering and acting upon a plea in circumstances where the proceedings may be void for want of being properly commenced. (The same course was adopted with respect to the related matters listed for trial.) 9. Ultimately, no judicial determination was required as to that issue, however, as legislation was passed on 31 October 2013 which retrospectively deemed persons including Mr Regan and Ms Nash lawfully appointed prosecutors (namely, the Coal Mine Health and Safety Amendment (Validation) Act 2013). No dispute as to the authority of the prosecutor remained in the present proceedings thereafter. 10. It was thus only after the significant delay occasioned by those procedural issues that, on 12 May 2015, Mr Cahill formally entered a plea of guilty on behalf of the defendant (although that course had been foreshadowed to the prosecutor as early as 6 August 2013). It might be noted that, when the defendant entered its plea in May 2015, it was intended that the plea be entered with respect to the further amended application for order, which, through a filing error, was not before the Court at that time. For more abundant caution, the plea entered in May 2015 was withdrawn and re-entered with respect to the further amended application for order during the sentencing hearing on 8 September 2015. Verdict 1. Having regard to the charge in this matter, the particulars of the offence, an agreed statement of facts and, as will be discussed below, the evidence tendered in the proceedings together with the consideration of the features of the matter relevant to sentencing, I accept the plea of guilty by the defendant and will enter a verdict accordingly. Evidence 1. In addition to the agreed statement of facts described above, the prosecutor relied upon a tender bundle filed on 7 September 2015. The tender bundle comprised a series of 30 photographs of the scene of the incident, the truck cabin, the remote control and of simulations of a similar truck parked under the Bin. 2. The defendant relied upon the affidavit evidence of Mr Jonathon Mingay, sworn 4 September 2015, and Ms Linda Pringle, sworn 3 September 2015. 3. Mr Mingay has held the position of Managing Director of the Daracon Group of companies, which includes the defendant, since early 2015. He noted that the Daracon Group is a family company which currently employs approximately 865 people and operates 170 machines and 130 trucks on a daily basis. 4. Mr Mingay was authorised by the Board of Directors to make an affidavit on behalf of the defendant. In that capacity, he stated that "the company, by its Board of Directors, accepts responsibility in relation to the acts and omissions set out in the amended Application for Order and … acknowledges the injuries, suffered by M Oldknow in the subject incident, which resulted in his death". (The contrition expressed by Mr Mingay should be understood as a reference to the further amended application for order.) 5. Mr Mingay deposed that he was personally informed of the incident in the early hours of 18 February 2009. Shortly thereafter, he arranged for representatives of the defendant to visit Mr Oldknow's family to offer condolences and support. Critical incident counselling was also extended to employees and contractors of the defendant who worked with Mr Oldknow. He stated that the defendant "works hard at being both a good employer and a good corporate citizen". 6. In that respect, the affidavit was accompanied by annexures A to E which provided support for the following statements: 1. The defendant has many long term employees; 2. The Daracon Group is a regular generator and donor of funds to charities and community groups; 3. The Daracon Group is involved in initiatives aimed at providing employment opportunities to indigenous workers; and 4. The Daracon Group sponsors a community-based mentoring program for local adolescents in Singleton, New South Wales. 1. As to the occupational health and safety systems of the defendant, Mr Mingay deposed as follows: 24 At the time of the subject incident, the Daracon Group has in place a detailed Occupational Health and Management System. The details of that system are set out in the Affidavit of Ms Linda Pringle sworn 3 September 2015 and I seek leave to rely upon that affidavit. 25 Daracon Mining has not previously been the subject of any prosecution in relation to a breach of work, health and safety legislation. 26 In relation to other members of the Daracon Group of Companies, only Daracon Contracting Pty Ltd has been the subject of a previous prosecution in relation to a breach of work health safety legislation. 27 I am not aware of any incident having occurred in the period since the subject incident which is the subject of an ongoing investigation by a WHS regulator or the subject of any prosecution in relation to an alleged breach of work health safety legislation. 1. Ms Pringle was an "Occupational Health and Safety Specialist" employed by another company in the Daracon Group (Daracon Engineering Pty Ltd) who acted as an 'OH & S Advisor for the Daracon Group'. 2. She deposed that, shortly after she commenced work with the Daracon Group in March 2004, she undertook a review of the Group's 'Occupational Health and Safety Management System' ('the OHSMS'). In particular, she sought to identify, and address, any gaps between the OHSMS and the relevant Australian/New Zealand standard – AS/NZS 4801:2001 ('the Standard'). That process was completed by early 2005. 3. The updated OHSMS was certified by SAI Global Certification Services Pty Limited on 6 July 2005 and maintained certification to the Standard continuously thereafter (with the auditor being changed from SAI Global to Bureau Veritas in 2013). This process required an annual "Surveillance Audit" and all elements of the OHSMS being audited triennially. Five 'Certificates of Registration' covering that period were annexed to Ms Pringle's affidavit and marked 1 to 5. The most recent Certificate indicated that the management system continued to provide a good level of assurance across all three standards and possess no fundamental weaknesses. 4. The OHSMS was also accredited by the Hunter Water Corporation in accordance with the New South Wales Government OHSMS Guidelines on 5 July 2005. 5. A series of emails constituted annexure 7 to the affidavit, the purposes of which emails were to inform management about information as to safety. 6. Annexure 18 to the affidavit was a copy of the Daracon Group risk assessment and safe work method statement which was developed on 3 August 2007. That document provided that the daily mechanical inspection of the Bin was ascribed to the operators (initially CMOP and, following the takeover, RPPL). 7. Ms Pringle deposed that the following occurred prior to the incident: (a) Daracon Group regularly disseminated information about safety to its senior and line managers by way of emails from the Group's OH&S department. Annexed and marked "7" are a selection of such emails sent in the period between about 6 March 2008 and about 29 June 2009; and, (b) Daracon Group's employees and line managers undertook regular safety checks and inspections of work places to assess their compliance with the OHSMS. Annexed and marked "8" is a sample of various types of reports prepared following such inspections during the 12 month prior to February 2009; and (c) Daracon Group regularly performed audits under the OHSMS in relation to the implementation of and compliance with the OHSMS at a project level. Annexed and marked "9" are examples of Daracon Group OHSMS project audits dated respectively 12 June 2008 and 29 April 2008 which I performed. (d) Daracon Group also regularly performed integrated project environmental, OHS and quality assurance audits in relation to the implementation of and compliance with the Daracon Group's Environmental, OHS and Quality Management Systems. Annexed and marked "10" are examples of Daracon Project Environmental/OHS/Quality Assurance Audit reports dated, respectively, 3 March 2008 and 23 May 2008. (e) Daracon Group also performed project specific system checks such as Emergency Evacuation Evaluations. Annexed and marked "11" is an example of Project Evacuation Evaluation dated 1 April 2009. (f) The Daracon Group also audited the implementation and effectiveness of the OHSMS as it applied across the whole Group of Companies. Each procedural element was audited by way of a desktop audit using all records and processes in place. This is referred to as a Management Review and is used to assess overall Group levels compliance with its OHSMS and, also, quality and environment standards. Generally, these audits are performed mid-calendar year. Annexed and marked "12" is a copy of the Daracon Group Procedure: Management Review. Annexed and marked "13" is a copy of the Management Review report for the period ending 1 June 2008; and (g) The Daracon Group OHS Committee met regularly to enable employees to raise issues of concern in relation to health and safety issues; to provide feedback and input on matters of health and safety; and to assist in the planning and implementation of improvement strategies in relation to the Group's OHS systems and practice. Annexed and marked "14" is a true copy of the Daracon Group OHS Committee's Consultation Statement. Annexed and marked "15" are copies of the committee's meeting records for the 12 month period prior to the subject incident. 1. The OHSMS Manual as at 12 January 2009 (annexure 16) was in force at the time of the incident. 2. As to the incident, Ms Pringle deposed as follows: 15. In about July 2007, after the electronic control program for Reject Bin 802 Bin Gates had been amended, Daracon Mining was retained, on an hourly rate, by the operator of the Ravensworth Underground Mine, Resources Pacific Pty Ltd (RPPL), to haul reject from Bin 802 to a dump site. RPPL specified the use of truck and dog combinations. 16. Prior to Daracon Mining employees and contractors commencing work hauling the reject from Bin 802: (a) Daracon mining line managers, Tim Carey and Dean Carroll, attended Tool Box Talks in relation to the Reject Bin Project presented by the Reject Bin Project Site Supervisor, Nathan Bourne: annexed and marked "17" is a true copy of a Record of Tool Box Talk dated 30 July 2007 presented by Nathan Bourne of McKajj Services Pty Ltd. (b) In late July 2007 drivers employed by Daracon Mining and drivers contracted to Daracon Mining, including Mr Oldknow, participated in the recommissioning of the Bin 802 under the direct supervision of Mr Barnes, an electrical engineer retained by RPPL to oversee the field work required for the recommissioning of that bin. (c) Daracon Mining line managers, Tim Carey and Dean Carroll, also attended the recommissioning of the bin for use with truck and dog combinations. (d) McKajj Services Pty Ltd provided a JSEA in relation to the loading and haulage of reject from Bin 802 using truck and dog combinations. A copy of the McKajj Services Pty Ltd JSEA dated 2 August 2008, prepared by Nathan Bourne and entitled Voids Rejects Haulage JSEA No. 0001, marked L, is annexed to the Statement of Agreed Facts. (e) Tim Carey, Depot Manager and Bruce Lyttle, Daracon Coal Services Truck Driver, assigned as Daracon's employee representatives during the risk assessment development process, developed a Daracon Group Risk Assessment and Safe Work Method Statement in relation to the hauling of reject from Bin 802 with truck and dog combinations. Annexed and marked "18" is a copy of the Daracon Group Risk Assessment and Safe Work Method dated 3 August 2007 entitled Coarse Reject Material Haulage Using Truck and Dog Trailers. (f) Daracon Mining appointed the most senior and experienced driver on each shift as lead driver – Mr Delaney was the lead driver on day shift; Mr Oldknow was lead driver on night shift; and Daracon Mining assigned the lead drivers as on-site supervisors of the drivers assigned to each shift The lead drivers oversaw the completion of the JSEA; completion of Daily Worksheets; collection of each driver's motor vehicle status reports; and, in relation to the contract drivers, an hourly truck hire docket: Annexed and marked "19", "20", and "21", respectively, are copies of the Daily Worksheet; the motor vehicle status report; and the hourly truck hire docket used in relation to the haulage of reject from Bin 802 prior to the subject incident. 1. The defendant also employed Mr Peter Sherwood from August 2007 as a Transport Supervisor at their Ravenswood Depot. His duties included ensuring compliance with relevant policies and procedures. From time-to-time he conducted site visits for the purpose of inspecting the haulage road and supervising the truck drivers allocated to hauling reject material from the Bin. 2. Ms Pringle deposed that the defendant took the following steps after the incident: (a) Daracon Group retained the services of an external specialist OHS consultancy to undertake a comprehensive, independent investigation of the incident; (b) Daracon Group assigned OHS resources, line managers and drivers to participate in an incident investigation conducted by Xstrata; and (c) Daracon Group assigned OHS resources, line managers and drivers to the review of risk assessments conducted by Xstrata, together with a review of the truck driving rules, the routes and the loading process from Bin 802; revised operating procedures; and the testing of those procedures, including the substitution of CAT 740 Dump Trucks. Annexed and marked "22" is a copy of the revised "Safe Operation Procedure - Operation of Reject Bin" dated 17 March 2009 authored by D Huthnance and checked by N Greedy. 22. Thereafter, Daracon Group developed a Project Safety Management Plan for the "Ravensworth Void Project" which project included the work undertaken at Reject Bin 802. Annexed and marked "23" is a copy of the Daracon Project Safety Management Plan – Ravensworth Void Project, Xstrata Coal, Daracon project No. M20863 dated 30 October 2009. Annexed and marked "24" is a completed copy of the SOP Operation of the Reject Bin Practical Assessment dated 13 January 2011 in the name of Ben Bailey. Annexed and marked "25" is a copy of a Reject Bin 802 Competency Assessment Record dated 13 January 2011 in the Benjamin Bailey. 23. Daracon also undertook a review of its operations generally with a view to identifying any similar operations to that undertaken at Reject Bin 802. 24. One such operation was identified in relation to the Xstrata MCPP and the Safe Work Method Statements for this operation was revised. This was a temporary job which was completed in or about 2009. Annexed and marked "26" is a true copy of the Daracon Risk Assessment and Safe Work Method Statement for Dump Truck Operations from Railway Street, Teralba – Job Number: C25001 revised 22 May 2009. 25. Also, in April 2009, Daracon Group participated in a collective risk assessment of loading operations at the West Wallsend Colliery conducted by Oceanic Coal Australia Limited. Annexed and marked "27" is a true copy of the resultant risk assessment titled "West Wallsend Coal Bin Load out Risk Assessment" dated 24 April 2009. 26. Following the risk assessment of loading operations at West Wallsend Colliery, Daracon Mining developed a system of driver competency training and assessment. Annexed and marked "28" is an example of the Transport Driver Assessment dated 27 May 2009 in relation to Glen Presland. 27. In July 2009 Daracon Group, also, undertook a further risk assessment and prepared an updated safe work method statement in relation to the haulage of coal from Westside Bin at the West Wallsend Colliery. The subject risk assessment and safe work method statement was revised on 26 November 2010. Annexed marked "29" is a copy of the revised Daracon Risk Assessment and Safe Work Method Statement entitled "Coal Haulage from Westside Bin to Energy Coal Pad at MCPP" dated 26 November 2010 28. In addition, Oceanic Coal undertook a complete review and upgrade of the coal loading operations at the West Wallsend Colliery, including a SIL assessment of the relevant aboveground coal loading bin. Annexed and marked "30" is a copy of the covering report dated February 2012 prepared by HMA in relation to the West Wallsend Colliery Surface Truck Loader Upgrade. 29. Following the upgrade of the coal loading operations at the West Wallsend Colliery, a system of driver training and assessment was developed. Annexed and marked "31" is a copy of an MCCP Coal Haulage from 2000T Bin to Dump Station Competency Assessment dated 19 November 2013 in relation to Wayne Johnson. 30. In relation to surface loading of vehicles from overhead bins, the only contract presently held by any division of the Daracon Group is the contract relating to the transport of coal at West Wallsend Colliery, namely, the bin which underwent a complete review, including a SIL assessment and rebuild, which is referred to in paragraph 28 above. victim impact statement 1. The Court received a Victim Impact Statement signed by Mr Oldknow's widow, Mrs Gail Oldknow. There was no objection to the Statement being received by the Court. 2. In tendering the statement, the prosecutor noted that, pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999 ('the CSP Act'), the Court may receive a Victim Impact Statement at any time after it convicts but before it sentences an offender. Given the temporal requirements of that provision, the prosecutor submitted that the Court might enter a conviction in the proceedings during the course of the sentencing hearing in order to receive and consider the statement "in connection with the determination of the punishment for the offence" pursuant to s 28(4) of that Act (an alternative agreed course was that the Court would consider the Victim Impact Statement in its judgment after entering a conviction). 3. The Court noted that the more conventional approach to victim impact statements in this jurisdiction was to receive and acknowledge the same, but not to treat such a statement as a matter which should directly bear upon the sentencing of the defendant. The prosecutor accepted that approach was in accordance with s 28(4A) of the CSP Act and did not seek to persuade the Court to take an alternative course in this matter. 4. In that light, I adopt the approach taken in Inspector Dall v Ullrich [2012] NSWIRComm 87 ('Ullrich') with respect to the victim impact statement. Whilst, having taken that approach, I am unable to take the Statement into account in determining penalty (Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80] to [90]), I have closely examined the Victim Impact Statement and I am conscious of the effect the loss of her husband has had on Mrs Oldknow. It is clear that Mr Oldknow's death caused her an enormous amount of pain and suffering and continues to affect her greatly. The Court extends its deepest sympathy. Submissions 1. The Court was assisted by written submissions filed by the respective parties, attended by oral supplementation, which will be summarised below. The Prosecutor Objective Features 1. Mr J Agius SC of counsel, who appeared on behalf of the prosecutor, submitted that the objective seriousness of the offence was significant, both in terms of its consequences and because the risk, which was one of death or serious injury, ought to have been readily foreseen and could have been relatively easily addressed. 2. The risk was said to be "obvious and foreseeable" because the work system involved drivers positioning trucks beneath the Bin "in an unprotected and vulnerable position" in order to receive an automated discharge of 10 tonnes of material into the hopper immediately behind the cabin. 3. Whilst counsel for the prosecutor acknowledged that the defendant could not be "held responsible nor punished for the absence of overhead fall protection", as the defendant was not permitted to use mine haulage trucks (which possess such protection), he submitted that the fact the trucks being used were not equipped with the same "ought to have acted as a catalyst for the defendant to be proactive in ensuring that the Bin could not discharge its load on top of the cabin of a truck in any circumstance". 4. The prosecutor accepted that there was shared responsibility for the safety of workers at the mine. In particular, the defendant was not the installer or operator of the control program nor the controller of the work system. Further, the defendant was informed that the Bin could not be opened unless the truck was correctly positioned and neither the defendant nor its drivers were warned that driving through the loading bay and then reversing a truck into position could result in the activation of the Bin gates while a truck was incorrectly positioned beneath it. This was in conformity with a risk assessment circulated at the mine prior to the incident which did not identify the issue. In that light, the prosecutor accepted that "if there is a question of apportionment we would not dispute a submission that … this defendant came at the end of the chain". 5. Nevertheless, it was submitted that, by its plea, the defendant acknowledged that it should have taken the following readily available steps to mediate that risk: 1. Request or obtain the details or results of any risk assessment, functional safety analysis or routine maintenance program in relation to amendments made in consequence of the change to truck and dog combinations; 2. Request details of the daily inspection program or routine maintenance program in relation to the Bin; 3. Insist or ensure that the work method or standard operating procedure for the loading of trucks with reject material from the Bin prevented the cabin of any such truck from being located beneath the Bin's loading gates when those gates were permitted to open by the electronic control system; 4. Inquire as to what steps had been taken to verify applicable design standards after receiving the February 2008 risk assessment pertaining to the Bin, which had identified a question as to verification of the design of the Bin; and 5. Require that the owner and/or operator of the Bin undertake a functional safety hazard and operability analysis in relation to the use of trucks with the Bin prior to its workers commencing work on site using the same. 1. The measures taken by the defendant following the incident are indicative of the ease with which it could have taken steps prior to that occurrence to address the risks that were identified in its plea of guilty. 2. The Court is required to have regard to the deterrent effect, both general and specific, in considering the appropriate penalty. As to those considerations, the prosecutor stated as follows in its written submissions: A component for general deterrence should be applied because it is the responsibility of employers to ensure that appropriate systems are in place so that workers are not being placed at risk of serious injuries, particularly in the course of mining operations involving mass haulage of heavy material. There is plainly a need to impose a penalty at a level that will draw the attention of those operating in the industry to the necessity of engaging in practices that conform to the requirements of the Work Health and Safety Act 2011. An element of specific deterrence is appropriate given that the defendant continues to operate in an industry which is replete with risks to health and safety. The affidavits of [Ms Pringle and Mr Mingay] are indicative of the continuing operations of the Daracon Group and reinforce the need for an element of specific deterrence. 1. The prosecutor also submitted, in that respect, that although the delay occasioned in these proceedings was not the fault of the defendant, it cannot be taken into account in its favour with respect to the adverse consequences of delay since, as a company, the defendant could not experience harm as a result of the same in the manner that a personal defendant may. 2. As the defendant was not a previous offender, it faced, under s 12(b) of the Act, a maximum penalty of 5000 penalty units, that is, a fine of $550,000. The quantum of that sum evinces a legislative intention that offences against the Act should be treated seriously: Markarian v The Queen (2006) 228 CLR 357 ('Markarian') at [30] to [31] and Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 682 ('Camilleri's Stock Feeds'). 3. However, it was conceded that, in the "unusual" circumstances of this case, where the risk was of serious harm but there was shared responsibility for the safety of workers, the penalty should be at the lower end of the scale of seriousness. The factors that contributed to this submission may be summarised as follows: 1. The specific risk that materialised in this case could not have done so absent certain things occurring which were outside the control of the defendant (namely, a change in workplace and work management such that mine haulage trucks were not permitted to use the haulage road and the amendment to a sequence in the software controlling the Bin which removed a requirement for the TIP sensors to be activated simultaneously in order for the Bin gate to open); 2. The defendant was misinformed that the Bin gate could not be opened unless the truck was correctly positioned; and 3. There were two indicators of driver error leading to the incident (namely, the driver activated the gates via the remote control despite not being in an identified loading position and, contrary to instruction, reversed his vehicle into position under the gates). Subjective Features 1. The defendant entered a guilty plea at an early opportunity. The Court is entitled to discount the respective penalty by 25 per cent as reflecting the utilitarian value of that plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 ('Thomson'). 2. The defendant also fully cooperated with the investigation into the incident. 3. The prosecutor sought the imposition of a fine upon the defendant, after conviction, with further orders that: 1. The defendant pay a moiety of 50 per cent of any penalty to the prosecutor; and 2. The defendant pay the costs of the prosecutor as agreed or assessed. The Defendant Objective Features 1. Mr Cahill acknowledged that, by entering a plea of guilty, the defendant admitted all of the elements of the offence, together with each of the particulars of the offence as pleaded. This admission occurred in the context of an offence of strict liability, where the defendant had a personal, non-delegable duty to ensure or guarantee that the defendant's subcontract drivers were not exposed to risks arising out of the defendant's undertaking at the defendant's place of work: Carrington Slipways Pty Ltd v Callaghan (1985) IR 467. 2. By its plea, the defendant conceded that: 1. There were steps which, in all the circumstances of the incident, it was reasonably practicable for the defendant to have taken; and 2. Those steps, if taken, would have either eliminated, or otherwise reduced the risk (which was both serious and foreseeable). 1. In particular, counsel for the defendant conceded that the following steps should have been taken: 1. As to Particular 5, the defendant should have required the owner/operator of the Bin to undertake a particularised functional safety analysis aimed specifically at the potential effect of the change from using mine haulage trucks to truck and dog combinations with the Bin, including the related amendment to the computer code to accommodate that change. That step should have been taken for the following reasons: 1. The work system was altered in a manner which had the capacity to affect the defendant's drivers and subcontract drivers; 2. Mine haulage trucks possess overhead fall protection and have a different physical presentation in the loading bay to truck and dog combinations; 3. The change involved an amendment to the computer code to facilitate the change to truck and dog combinations; 4. Having regard to the nature of the work being performed, reliance on the oral assurances received by the engineers at the time of commissioning was not sufficient; and 5. The defendant should have recognised the significance of the question raised by the risk assessment completed by CMPO on or around 4 February 2008, after the change to truck and dog combinations, which identified the issue of the need to verify the design of the Bin. 1. As to Particular 6, the defendant should have ensured that the work method adopted by its contract drivers was safe in the context of loading truck and dog combinations from the Bin in that it prevented the cabin of the trucks from being located beneath the Bin at any time that, for whatever reason, the computer code permitted the gates to be opened. The significance of the failure to ensure a safe work system in that respect was two-fold: 1. First, the flaw in the code was realised in consequence of the adoption of an operating procedure by a small number of drivers whereby they reversed their trucks into position in the loading bay in a manner which did not reflect the established work system. Although the defendant was not aware of the adoption of that procedure, it accepted that if the drivers had never been permitted to reverse into position the incident would not have occurred; and 2. Secondly, a change in the operating procedure for drivers was a matter over which the defendant had some control. 1. As to Particular 7, the defendant should have ensured that the electronic sensors were actually inspected and cleaned by the operator and/or owner of the Bin (in accordance with their assurance that they were both the subject of daily inspections and included in the routine maintenance). This was described by Mr Cahill as a "matter of common sense" since such sensors need to be kept clean to enable them to perform their function. However, he noted that it was common ground that any failure to inspect and/or clean the sensors did not play a causal role in the incident. 1. Despite those failures, it was submitted that the following mitigating circumstances diminished the defendant's culpability for the incident: 1. The defendant was not the designer, the installer, the owner or the operator of the automated control system for the Bin, nor was the defendant involved in the design or implementation of the Bin upgrade project, including the design and implementation of the upgrade of the automated control system; 2. The defendant had no control over and played no part in the change of design which resulted in the substitution of truck and dog combinations for mine haulage trucks, including the amendment to a single sequence of computer code in the control program for the Bin's automated control system; 3. Indeed, the defendant's contract and its involvement in the project commenced after the Bin upgrade project had been effectively completed and after the change from mine haulage trucks to truck and dog combinations and the related modification of the automated control system. 4. As such, the defendant was "right at the end of the chain" in the sense that, although the drivers were on subcontract to the defendant, they were "exposed [to risk] in circumstances where the control over the design and operation of the equipment particularly given the nature of the flaw was in the hands of people over whom the defendant had no direct control and could only negotiate with"; 5. Whilst participating in the field commissioning process of the Bin, the defendant and its drivers were informed by engineers retained by RPPL that the Bin gates were "failsafe", that is, the gates could not open if the cabin of a truck and dog combination was beneath the loading chute of the Bin. In that sense, the defendant was assured that there was no risk of a cabin of a truck and dog combination being struck by reject material because the automated electronic control system precluded such an occurrence. That was in conformity with several risk assessments both before and after the amendment to the code; 6. At that time, an engineer retained by RPPL, Mr Barnes, devised and oversaw the development of a loading procedure for truck and dog combinations. That involved providing specific instructions and directions about the manner in which the vehicles were to be driven into the correct position. Mr Barnes did not inform the defendant, nor its line managers or drivers, of the flaw in the computer logic or that overshooting the loading mark for any given truck and dog combination and then reversing back to a point at which the cabin of that combination was located under the loading chute of the Bin could activate the Bin gate opening sequence of the automated control system and, hence, place the truck cabin at risk of being struck by reject material (indeed, the defendant was given contrary assurances that the system was "failsafe"); 7. It was the deviation, by the drivers, from the instructions provided by Mr Barnes that activated the flaw in the code. There is no evidence that the practice was known to the defendant; 8. The defendant was advised that the Bin would be subject to a daily mechanical inspection and routine maintenance; 9. There was no evidence of malfunction or any incidents involving a failure of the automated electronic control system, whether related to or caused by the flaw in the code or otherwise, in the period between when the defendant commenced hauling reject material from the Bin and the date of the incident - a period of approximately 19 months; 10. In that respect, it was maintained that the defendant had good reason to be confident that the operation of the Bin gates was failsafe as at August 2007 and there was nothing in the evidence to suggest that the defendant was, or should have been, on actual notice that the automated electronic control system was flawed after the change to truck and dog combinations; and 11. The defendant submitted that the determination of the objective seriousness of the subject breach must be assessed by reference to the potential consequences of the breach and "the measure of evidenced disregard concerning the safety of employees in the circumstances": DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 ('DPP v Amcor') at [35]. In this case it was said that the defendant did not ignore an obvious risk and that the evidence did not indicate a disregard by the defendant for the safety of its drivers either generally or in the specific context of loading operations from the Bin. 1. Mr Cahill submitted, in light of those circumstances, that the Court may be reasonably satisfied the defendant's failures were limited both in nature and extent. In particular, the defendant submitted that the failures did not suggest a departure from its well-recognised good industrial practice. 2. The approach which should be adopted in relation to the role played by deterrence in the sentencing of offenders is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 ('Capral'). 3. As to general deterrence, it was submitted that the observations of Marks J in WorkCover v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254 ('Vaughan Constructions') (at [15] to [17]) were apposite in the circumstances of this matter. Those comments are as follows: 15 In assessing penalty I will take into account the general deterrent nature of any penalty imposed, having regard especially to the fact that the incident occurred within the building industry, as well as the specific deterrent on this defendant. However, in stating this, I have regard to the fact that, in general terms, this defendant has established during the course of the proceedings that it has a particular commitment to ensuring occupational health and safety on all of its worksites. Furthermore, there is evidence that it has reinforced its commitment after the incident which gave rise to these proceedings. It carried out a review of its occupational health and safety processes, and reinforced the need to ensure adequate supervision of any task being performed of a similar kind to that which gave rise to this incident. The defendant has now adopted a practice of employing a dedicated occupational health and safety supervisor at each of its sites who must be appropriately qualified. This step has been taken at some cost to the defendant. 16 Compared with many defendants, this defendant may be assessed as being "a good corporate citizen" in terms of its commitment to its obligations under the occupational health and safety legislation. Whilst the deterrent effect of any penalty plays an integral part of sentencing principles, in my opinion it would be unjust to overly penalise this particular defendant by reference to any specific deterrence. To do so would, in my opinion, send an inappropriate message to defendants. Those defendants who generally make a substantial effort to comply with their obligations should be seen to be rewarded for that effort, rather than unduly punished. Whilst I will still have regard to the deterrent effect on this defendant, it my opinion it is not necessary that it be overly emphasised in terms of an overall penalty. 17 I have already canvassed a number of subjective factors which would, in the aggregate, mitigate against an overly excessive penalty. The defendant has pleaded guilty at the earliest possible opportunity. It was agreed between the parties that it cooperated with the WorkCover Authority in connection with its investigations. It has a substantial commitment to occupational health and safety matters and has taken steps to improve its procedures following the incident. 1. In that respect, there should not be too great an emphasis on general deterrence as, since the defendant was a good industrial citizen, a heavy penalty may have the opposite outcome to that intended and thus be contrary to the public interest. It was further submitted that general deterrence should not play a significant role in circumstances where the defendant was "at the end of the chain" of responsibility. 2. Upon the authority in Capral (at [76]), "[t]he 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". This aligns with questions of the propensity of the defendant to re-offend. 3. The defendant submitted that that this matter was not a matter which called for specific deterrence to any significant degree or at all as the Court could be comfortably satisfied that it was unlikely to re-offend in a similar manner in the future or at all for the following reasons: 1. The good record of the Daracon Group; 2. The steps taken by the defendant after the incident; and 3. The defendant's continued operations without further blemish over the intervening six years since the incident. 1. The defendant submitted that the offence fell at the lower end in terms of the seriousness of potential breaches of the relevant provisions of the Act. As noted above, that was not disputed by the prosecutor. Subjective Features 1. The defendant was entitled to have its plea of guilty taken into account as a factor on mitigation of penalty in relation to the assessment of the sentences to be imposed on it by the Court pursuant to s 21A(3)(k) of the CSP Act. The defendant emphasised that there was no dispute that the plea was entered at the earliest appropriate opportunity and that the Court was entitled to discount any penalty to be imposed by 25 per cent to reflect the utilitarian value of the plea. 2. It is common ground that the defendant cooperated in the investigation by the New South Wales Department of Primary Industries. 3. In accordance with the terms of s 21A(3)(i) of the CSP Act, which prescribes the statutory requirements for remorse to be taken into account as a mitigating factor, the defendant demonstrated that it had "accepted responsibility" for its actions and "acknowledged any injury, loss or damage caused by [its] actions or made reparation for such injury, loss or damage (or both)". As such, the defendant's remorse, as expressed by Mr Mingay in his affidavit, should be taken into account as a mitigating factor. 4. The defendant was a good industrial citizen. The defendant, along with the Daracon Group as a whole, was subject to the independently accredited Daracon Group OHSMS and actively promoted compliance with the same. The Court should be satisfied that the defendant had a detailed OHSMS that was implemented and checked at a site, project and senior management level as well as by independent auditors. 5. The defendant has no prior record for breaches of the Act. It follows that the defendant is entitled to the leniency which is normally extended by the Court to a first offender pursuant to s 21A(3)(e) of the CSP Act 6. Further, of the other companies constituting the Daracon Group, the only company which was previously recorded was Daracon Contracting Pty Ltd: see Inspector Dall v Daracon Contracting Pty Ltd [2005] NSWIRComm 149. Given that the Daracon Group had been operating in the civil engineering and building and construction industries since 1983, the Group's record, whilst not flawless, was nonetheless exceptional (particularly as the industries in which it operates are notorious for both the frequency and seriousness of injuries which occur as a consequence of breaches of workplace health and safety legislation: see Inspector Wade V Goldspring Earthmoving Pty Ltd [2011] NSWIRComm 106 at [24]). 7. The defendant also submitted that the delay in relation to the hearing of this matter, which had the effect of the outstanding matter "hanging over the head of the company for a period in excess of six years", was a matter which should be taken into account in sentencing. 8. As to rehabilitation, the defendant has, since the incident, taken steps to address the risks identified as a consequence of the same, including matters disclosed in the course of the coronial Inquest, and neither the it nor any other member of the Daracon Group has come under adverse notice in relation to workplace health and safety over the period that has elapsed since the incident. This demonstrated not just the potential for rehabilitation but the actual occurrence of the same. In the circumstances, it was submitted that "the combination of a significant delay and the evident progress of the defendant's rehabilitation is a matter that, on sentence, the Court may take into account in further mitigation of the penalty to be imposed": R v Todd (1982) 2 NSWLR 517 ('Todd') at 519; R v Fahda [1999] NSWCCA 267; and El-Afchal v R [2015] NSWCCA 112. Relevant Principles 1. The general principles for sentencing in this jurisdiction were discussed in some detail in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 ('Cross City Tunnel') and, more recently, in Ullrich and Inspector Christensen v Lend Lease Engineering Pty Limited (formerly Abigroup Contractors Pty Limited) [2014] NSWIRComm 42. I do not propose to repeat those principles here. Rather, I adopt the principles set out in Ullrich at [40] to [42] (including an excerpt from Cross City Tunnel at [184] to [191]) in this judgment, save for the addition of particular points of emphasis below. Consideration Objective Features 1. It is necessary to turn first to a consideration of the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of workers in this matter. In Cross City Tunnel it was observed (at [195]), in that respect, that: The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100]. 1. When constrained to the particulars of the charge before the Court, the relevant risk in the present matter was the risk of reject material falling through the roof of the cabins of truck and dog combinations in the event that, during a loading cycle, the Bin gates opened when the cabin was beneath the loading chute of the Bin. That risk to the health and safety of the contract drivers working for the defendant at the mine (as specified in the particulars of the charge) had every prospect of resulting in a fatality (as it did) or serious injury. 2. Any assessment of the objective seriousness of the offence must be confined to those failures particularised in the charge and then, based on what the offender actually did, taking into account, in that respect, all of the relevant circumstances surrounding the offence: Cross City Tunnel at [197]. It is also necessary to examine the precise nature of the failures of the defendant and any relevant points of aggravation or mitigation: Cross City Tunnel at [199]. 3. The failures of the defendant identified in the charge were two-fold. First, the defendant failed to ensure that it was not possible to activate the control program of the Bin so as to open the gates, thereby releasing reject material from the Bin, when the cabin of a truck and dog combination was, for whatever reason, positioned beneath the Bin gates in the loading bay. Secondly, the defendant failed to ensure that the routine inspection and maintenance of the Bin included routine inspection and cleaning of the TIP sensors so as to prevent the usual operation of the sensors from becoming blocked by dirt or other contaminants. 4. In the broad, I accept the submissions of Mr Cahill as to the measures that should have been taken to obviate the risk (as set out at [81] above). When those submissions are viewed in light of the particulars of the charge, along with the submissions of the prosecutor, they may be expressed as follows: 1. The defendant should have required a functional safety hazard and operability analysis be undertaken so as to assess the implications of the change to the use of truck and dog combinations with the Bin, particularly in light of the fact that there were amendments made to the computer code in consequence of that change and a query was raised as to the verification of the design of the Bin by the risk assessment of 4 February 2008; 2. The defendant should have ensured that the work method adopted by its contract drivers for the loading of truck and dog combinations with reject material from the Bin precluded a circumstance whereby the cabin of a truck and dog combination was located beneath the Bin gates when the computer code permitted the gates to open. The adoption of a procedure by some drivers which deviated from the established work method for loading the truck and dog combinations, and the defendant's ignorance of that practice, do not detract from the failures of the defendant in this respect as it was required under the Act to proactively search for and identify all possible risks and be diligent to ensure safety at the workplace: Cross City Tunnel at [246]; WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 ('ATCO') at [85], Rexma Pty Ltd (2008) 172 IR 210 at [52] and WorkCover Authority (NSW) v Coleman (2004) 138 IR 21 at [86]; and 3. The defendant should have ensured that the routine inspection and maintenance program conducted by RPPL included the routine inspection and cleaning of the TIP sensors pursuant to their undertaking to do so. Whilst the parties agreed that this failure did not contribute causally to the incident, it must be accepted that it could have occasioned comparable consequences. 1. In the context of this matter, there are a number of factors which increase the objective seriousness of the offence (see Inspector Estreich v Hadfield [2012] NSWIRComm 88 ('Hadfield') at [49] and Ullrich at [49]): 1. The principles as to the "relationship between the seriousness of injuries suffered or which may have been suffered and the gravity of the offence" were discussed in Cross City Tunnel (at [191]) as follows: The principle was stated in Capral at [94], thus: 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… The judgment refers to a long line of authority consistent with that approach, including Tyler at 5, Hannah v Wonar at 9 Wong v Melinda Group Pty Ltd (1996) 82 IR 118 at 131, Lawrenson at 476, Walco at 22 and McDonald's at 428. To these may be added Fletcher Construction (1999) at 79. This passage has been consistently applied: Maddaford at [17]; Menzies at [86]; Narayan at [40] and Cahill at [35]. The authority was applied, in terms, in Morrison v Powercoal (2003) at [32] and Morrison v Powercoal (2005) at [93]. These principles are consistent with s 21A(2)(g), and in the case of a death arising from an industrial accident, s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (see Morrison v Powercoal (2005) at [94]). 1. In these proceedings, the breach of the Act involved every prospect (and the occurrence) of a serious consequence and manifested the seriousness of the risk flowing from the same. To that extent, the fatality occasioned by the incident adds to the gravity of the offence: Capral at [94] and Ullrich at [55]; 2. Having regard to the work system in question, whereby a truck with no fall protection drove underneath the Bin to receive an automated discharge of some ten tonnes of reject material, the risk of drivers being injured or killed by reject material falling onto them through the cabin of a truck and dog combination if, during a loading cycle, that cabin was positioned beneath the chute of the Bin was, as the defendant conceded, foreseeable. The degree of foreseeability is a significant factor to be taken into account when assessing both the gravity of an offence and the level of culpability of a defendant: Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 ('McDonald's') at 450; Hadfield at [52] and Cross City Tunnel at [191]). In particular, the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral at [82]. However, it should be noted that this is not a case in which the defendant actually foresaw the risk to the safety of its drivers but did not act upon it. Thus, this is not a matter where, as I will discuss further below, the seriousness of the offence is increased by a known risk being left unabated: see Ullrich at [50], see also Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993) at [8]; and 3. Simple remedial measures were available to obviate the risk. This represents a factor in assessing the gravity of an offence: Cross City Tunnel at [191]. The measures taken by the defendant after the incident, while laudable, are demonstrable of the steps that they should have taken earlier. In this respect, the Court notes that steps taken by the defendant after the incident are applicable to the assessment of the objective seriousness of the offence as they are illustrative of the measures that may have been taken prior to the incident: Cross City Tunnel at [250]; McDonald's at [439] and Department of Mineral Resources (NSW) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at [27]. 1. There are two other considerations relevant to the objective seriousness of the offence. The first is the maximum penalty for the offence which, in this case, under s 12(b) of the Act, is $550,000 (given that the defendant is a first offender). The prosecutor submitted, correctly in my view, that the quantum of the maximum penalty prescribed by the Act evinces a legislative intention that offences against the Act are to be treated seriously: see Markarian at [30] to [31] and Camilleri's Stock Feeds. 2. The second consideration is deterrence. The defendant submitted that the correct approach to be adopted in relation to the role of deterrence in sentencing offenders for contraventions of the Act was set out in Capral. That submission is, in my view, correct. 3. However, the defendant also sought to rely upon the decision of Marks J in Vaughan Constructions as authority for the proposition that general deterrence should play a minimal role in sentencing in these proceedings as penalising an offender with a "particular commitment to ensuring occupational health and safety" may "send an inappropriate message to defendants" (at [15] to [16]). 4. It is clear that, in Vaughan Constructions, his Honour did apply the principle of general deterrence in sentencing the defendant in that case although, it would appear, his Honour found the significance of that factor in sentencing was reduced in consequence of the factors stated above. Just what reduction was made, and whether it differed from discounts associated with specific deterrence, is not entirely clear. 5. To any extent that the approach taken in Vaughan Constructions differs from the principles as to deterrence outlined in Capral, I would decline to follow it. Whilst "the attitude of a defendant to questions of workplace safety" and the "propensity to re-offend" are relevant to the consideration of specific deterrence in sentencing, rewarding an offender for an ongoing commitment to ensuring workplace safety by diminishing the consideration of general deterrence in the sentencing process does not, in my view, reflect the principles in Capral. In particular, such an approach erroneously conflates the separate roles of specific and general deterrence and may result in a 'double counting' of considerations which properly go to specific deterrence alone. The adoption of the proposition advanced by the defendant would, therefore, be inconsistent with the significant role of general deterrence to encourage other potential defendants to adopt safe work systems as demonstrated below. 6. General deterrence is applicable in relation to this offence. In fact, it may be said that ensuring the penalty properly reflects the need for general deterrence takes on particular importance in this matter given the imperative to draw attention to those operating in the mining industry of the need to ensure that adequate systems of work are adopted in relation to inherently dangerous tasks at all stages of the operation: Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 ('Morrison v Powercoal (2003)') at [101] (see Cross City Tunnel at [252] for a counterpart observation as to the construction industry). As was explained in Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 ('Morrison v Powercoal (2005)') at [95], in the context of an underground mine, and reiterated in Cross City Tunnel at [238] as to construction, the existence of a perilous workplace places an "uncompromising responsibility on the corporate respondent to take every possible precaution that was reasonably practicable to ensure any risk to health and safety did not materialise". This statement is applicable to the present case, irrespective of the fact that the incident occurred in the post-extraction stage of the mining operation, namely, disposal of reject material. 7. As to specific deterrence, it is useful to recall the following observation of the Court in Cross City Tunnel (at [193]): …as was pointed out in Capral at [77], it is unlikely that the weight which may be attached to specific deterrence could be reduced to zero in the cases of offences under occupational health and safety legislation. At the least, the principle will apply where the offender "continues to be an employer" (as risks to the safety of employees or contractors may "exist or be possible"): see also Green v Camilleri Properties at [17]; Gleeson at [32]; Albright at [18]; Tippett at [106]; Wilson's Tree Service at [113] and Rexma at [50]. This is approach will encourage diligence by the offender in the future. 1. The submission of the prosecutor that this factor is enhanced in the present proceedings because the defendant continues to operate in dangerous industries is compelling: see Cross City Tunnel at [253]. However, the defendant submitted that "the Court can be comfortably satisfied that [the defendant] is unlikely to re-offend in a similar manner in the future or at all". That submission was predicated upon the record of the Daracon Group, the steps taken by the defendant after the incident and the subsequent six years of continued operations without further blemish. I accept that steps have been taken since the incident that are indicative of a positive attitude to occupational health and safety (Capral at [76]) and the risk of re-offending is low. As such, specific deterrence will play a minimal role in the penalty imposed on the defendant. 2. Absent factors mitigating the seriousness of the offence, the aforementioned discussion of the objective features of this matter would readily result in the conclusion that the offence was quite serious. However, counsel for the defendant identified three factors which, in my view, properly constitute significant factors in mitigation of the seriousness of the offence. I propose to address those factors seriatim. 3. First, this was not a case where there was an absence of safety systems. On the evidence before the Court the defendant had an elaborate and detailed OHSMS, including systems of a general character and project-specific systems. There was a sophisticated safety system established with respect to loading reject material from the Bin into trucks for hauling, being the control program and associated procedures which were designed to ensure the correct positioning of trucks in order to prevent the risk identified in these proceedings. That particular system had been relied upon during loading, with apparent success, for some 19 months prior to the incident. In that respect, the matter raises similar considerations to those discussed in the judgment of this Court in McDonald's (at 403), where it was found that the seriousness of the offence was mitigated because the defendant had not ignored the risk of injury but, rather, had settled safety procedures and instructions at the time of an incident: see also WorkCover Authority (NSW) v BHP Company Ltd (1998) 83 IR 427 at 428 to 429 and ATCO (at 85). 4. Here, as in that matter, it is appropriate that the defendant "should be given credit for the establishment of systems designed to achieve a safe work environment": McDonald's at 441. The offence cannot, in that context, be taken to disclose "disregard concerning the safety of employees in the circumstances": DPP v Amcor at 42. However, the defendant's culpability "must also be assessed for the failures within those systems": McDonald's at 441. In this case, the established safe system of loading reject material from the Bin into trucks for hauling was, as became clear upon investigation, possessed of a flaw. As earlier mentioned, the defendant's culpability in that context was its failure to require a functional safety assessment of the change to truck and dog combinations and the failure to prevent the adoption by its drivers of an alternative procedure for loading reject material to the established method. 5. Secondly, it was quite clear that the defendant did not know of the shortcomings of the established system (see Cross City Tunnel at [191]). Further, the prosecutor and defendant both contended that the defendant had been informed that the system was "failsafe" (such that any foreseeable risk had been eliminated). This must also be taken into account in mitigation of the seriousness of the offence. On agreed facts, although the defendant and its drivers were informed as to a safe loading procedure, they were not told that a deviation in that procedure (in the manner adopted by some of the drivers) would pose a safety risk. This is not a case where there was a known risk which the defendant ignored. 6. Thirdly, the parties contended that the risk was heightened by matters which were outside the control of the defendant including the required change from mine haulage trucks (which vehicles would have protected Mr Oldknow from the risk that materialised) to truck and dog combinations and the amendment to the computer code which removed the requirement for all sensors to be activated simultaneously before the Bin gates could open (without which the reject material could not have been released when the cabin of Mr Oldknow's truck was beneath the Bin gates). On the evidence in these proceedings, and in conformity with the parties' submissions in that respect, these considerations may be accepted as factors in sentencing which are in favour of the defendant. The sentencing of the offender must be constrained by the offence as particularised. Had those changes not been implemented, the incident would not have occurred. However, as the particulars of the charge (and their elaborations) make clear, there were measures available to the defendant to eliminate or reduce the risk. 7. It should be emphasised, the fact that the defendant was engaged in a common enterprise with other entities such that it did not have complete control over the safety of the Bin does not, in and of itself, "result in a significant diminution in the objective seriousness of an offence": see Cross City Tunnel at [242]. Whilst there was shared responsibility for the safety of workers at the mine, the particulars of the offence as charged are matters which were within the province of the defendant (albeit in combination with other entities) and mirror the measures that it should have taken as described above (which measures were largely reflected in steps taken by the defendant after the incident). 8. Upon the authority in Cross City Tunnel (at [241] to [242]), it is plain that the submissions of the parties may only go to establishing the limits of the defendant's culpability on the evidence in these proceedings by providing a precise and balanced delineation of its failures (and measures it may have taken) and a recognition of the circumstances over which it exercised control in a common enterprise in which many entities contributed to the operation of the same (as opposed to those factors which it did not control and for which it was not culpable). As mentioned above, this delineation is undertaken in order to ensure that the Court is sentencing upon the true nature of the offence. 9. It might be noted, in that respect, that the parties neither submitted that the Court should make findings as to the culpability of other entities per se, nor advanced arguments as to apportionment. In my view, this must be seen as the correct approach in light of the authority in Cross City Tunnel. It would be inappropriate for the Court to embark upon a procedure tantamount to conducting a trial of an entity not before the Court: Cross City Tunnel at [243]. 10. On balance, taking into account the circumstances of the incident, and making due allowance for the significant mitigating factors, it must be concluded that the offence was reasonably serious. Subjective Features 1. I now turn to the subjective features of the matter. 2. The steps taken by the defendant following the incident are a relevant factor in mitigation: Ullrich at [63] and Cross City Tunnel at [257]. Although these steps were available to be implemented prior to the incident (and have been earlier considered in this judgment in the context of determining objective seriousness), the defendant should be commended for these measures as they represented effective remedial steps that addressed the risk to safety disclosed in the charge. 3. The assistance provided to the family of an injured worker is another relevant factor in mitigation: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [17] and Morrison v Powercoal (2005) at [112] and [114]. The defendant provided some assistance and support to Mr Oldknow's family, including access to counselling and financial support, for which it should be entitled to some benefit. Ullrich at [67]. The defendant is to be commended for the support, namely, critical incident counselling, offered to employees and contractors who worked alongside Mr Oldknow. 4. I also accept that the defendant has demonstrated contrition and remorse over the incident (in part by its plea of guilty). In particular, the conduct of the defendant following the incident and the express statement of contrition and remorse by Mr Mingay demonstrate acceptance that its action or inaction contributed to the death of Mr Oldknow as required by s 21A(3)(i) of the CSP Act. These demonstrations may be taken into account in mitigation of penalty: Hadfield at [74] and Ullrich at [68]. 5. A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: Ullrich at [72]; Cross City Tunnel at [261] and Hadfield at [76]. This is a factor which can be taken into account for corporations: Cross City Tunnel at [261]; Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99 at 107 to 108 and McDonald's at 453. I accept that the defendant co-operated with WorkCover and its investigation and should, accordingly, be entitled to a discount. 6. The next consideration is the discount which should be afforded the defendant for the entry of a plea of guilty. 7. I discussed the principles applicable to an assessment of the appropriate discount for the utilitarian value of a plea in Ullrich at [79] as follows: The determination of where, within the range of 10 - 25 per cent, a discount should fall in a particular case is a matter for the discretion of the sentencing judge, based on a consideration of the utilitarian value of a plea to the efficiency and effectiveness of the criminal justice system: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], [115] and [153]. In Thomson, Spigelman CJ (as he then was) held, at [154], that there are two circumstances which will generally affect the appropriate level of discount in a particular case: the primary consideration is the time at which a plea is entered; the other consideration is the extent of the utilitarian benefit, for example, in the avoidance of a lengthy trial. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act). 1. In my view, upon the above principles, the defendant should receive the maximum discount for its plea of guilty for the following reasons: 1. Both parties accepted that the plea was, in substance, entered at an early opportunity; 2. Following the plea, the matter proceeded largely on the basis of the agreed statement of facts; 3. Having regard to the factual circumstances under consideration in these matters, "it may be reasonably concluded that any trial would have been both complex and resulted in lengthy proceedings": Cross City Tunnel at [266]; and 4. The prosecutor submitted that there was no reason why the Court should not grant the defendant the maximum discount. 1. Thus, I will grant the defendant a discount on sentence for its plea of guilty at the top of the range referred to in Thomson, namely, a discount of 25 per cent. 2. I note that the defendant had no previous convictions and is, therefore, entitled to the lenience which is normally extended by the Court to a first offender pursuant to s 21A(3)(e) of the CSP Act. I also accept that it is of good industrial character: Cross City Tunnel at [268]. This should be taken into account as a significant subjective factor: Ullrich at [84]. It may also be noted, to the extent that it is relevant, that the Daracon Group as a whole, although not possessed of an entirely unblemished record, may also be considered as having a good industrial character, particularly given its size, length of operation and the dangerous industry in which it operates: Cross City Tunnel at [270]. On balance, the defendant has demonstrated a strong commitment to workplace safety and that is also a factor to be taken into account in its favour: Ullrich at [66] and Morrison v Powercoal (2005) at [109]. 3. Finally, the defendant made two further submissions in mitigation with respect to the delay in these proceedings. Before considering those submissions, it is convenient to recall the principles as to delay outlined in the judgment in Todd, which were summarised by Backman J in Inspector Wade v Sid Fogg & Sons Pty Ltd [2009] NSWIRComm 162 ('Sid Fogg') (at [34]) as follows: 34 A sentencing court may take into account in mitigation a delay between the time of the offence and the time of sentence in a particular circumstance where there could be an unfairness. In R v Todd [1982] 2 NSWLR 517, Street J considered the circumstance where an offender had committed a number of offences within a short period of time but in different States – New South Wales and Queensland, hence the sentences were imposed separately and the sentences by the second State (New South Wales) were imposed after the expiration of the sentence imposed by the first State (Queensland). The offender committed the offences in 1974 and he was sentenced in NSW in 1979. Street CJ stated (at 519-520): . . . where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to be given to the progress of his rehabilitation during the term of his earlier sentence or otherwise, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. In the application of the principle in R v Blanco (at 66) there was evidence of an unexplained delay by the prosecution. In Mill v R (1988) 166 CLR 59 (at 66.5) the High Court held a long delay and uncertainty raises questions as to fairness. Any such delay should be explained. Delay could in some circumstances prohibit rehabilitation and if there is such evidence it should be given weight in the sentencing process. Haylen J in Inspector Farrell v The Salvation Army (NSW) Property Trust [2003] NSWIRComm 229 considered a circumstance where there had been delay due to an inquest then a following Coroner's Report before charges were laid. He rejected an application of the principle. 1. The defendant sought a discount on penalty due to the delay in the proceedings upon two bases identified in that authority: first, to quote counsel for the defendant, "the outstanding matter has been hanging over the head of the company for a period in excess of six years"; and, secondly, the resultant "evidence of rehabilitation in action" over that period. 2. As to the first basis, the prosecutor submitted that a discount based upon that consideration was not available to a corporate defendant. As to the second basis, however, the prosecutor did not dispute the defendant's submission and noted that "a large amount of time has passed and the defendant has not offended in that time". 3. There is some force in the prosecutor's submission that the first basis relied upon by the defendant for a discount in this context may not be available to a corporate defendant. For example, Backman J only applied that factor to discount the sentence which may have otherwise been given with respect to the personal, and not the corporate, defendant before her. 4. However, I do not propose to resolve that issue for two reasons. First, the Court was taken to no authority on the question. Secondly, the defendant would not, in any event, in my view, be entitled to a discount on that basis as a matter of merit due to the following two considerations: 1. First, the defendant contributed, at least in part, to the delay in the proceedings. That contribution was two-fold, in that the defendant acquiesced in holding over the proceedings until the completion of the coronial inquest and also actively sought the matter to be held over whilst the form of the charge and the particulars thereof were finalised. It should be noted, in that respect, that I accept the submission of the prosecutor that the defendant was not responsible for the delay occasioned by the legal issue as to the prosecutor's authority; and 2. Secondly, the defendant did not advance any evidence as to the alleged adverse consequences arising from that delay which, in fact, afflicted it. That omission is significant as, while some adverse consequences flowing from delay, such as feeling "stress" at having been charged with a criminal offence (Sid Fogg at [36]), may, to some extent, be readily apparent with respect to an individual defendant, the same could not be said for a corporate defendant. 1. As to the second basis advanced by the defendant, I accept that, whether a defendant is an individual or a corporation, it is appropriate to take into account the fact that the defendant has not re-offended during the period since the incident in circumstances where significant delay has occurred in the proceedings. That is a factor in mitigation that the Court will have regard to, but, in so doing, the Court will avoid double counting the discount afforded to the defendant for the steps taken after the incident. 2. Upon the basis of the foregoing discussion, it is clear that there are strong subjective features in relation to the defendant. These matters will be given weight by the Court in fixing penalty. Conclusion 1. As earlier noted, the Court must ensure that mitigating and subjective factors (whilst very strong in this matter) do not produce a sentence which fails to sufficiently take into account the objective seriousness of the offence. 2. Here, a man was killed as a result of a ten tonne load of reject material falling onto the cabin of his truck. The objective seriousness of the offence is well manifested in the charge, and the particulars thereof, and the various factors discussed in this judgment which dictate a conclusion that the offence, as I have earlier observed, even with mitigating factors, remains a reasonably serious one. Nonetheless, I have considerably reduced the penalty which may have otherwise been imposed upon the defendant because of the mitigating factors bearing upon objective seriousness and subjective features. I shall impose a penalty of $80,000 with a moiety to the prosecutor. The defendant shall pay the costs of the prosecutor for these proceedings as agreed or, in default, as assessed. orders 1. In all the circumstances, and for the reasons given, the Court makes the following orders: 1. The defendant is convicted of the offence as charged; 2. The defendant is fined the sum of $80,000 with a moiety to the prosecutor; 3. The defendant shall pay the costs of the prosecutor as agreed or, in default, as assessed for these proceedings. ********** ​ Annexure A (114 KB, pdf) 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: 19 October 2015