Employer Fined for Fatal Workplace Accident

The Industrial Relations Commission of NSW fined an employer for failing to ensure the health, safety, and welfare of its employees, leading to fatal injuries. The court considered the employer's actions and the need for general and specific deterrence.

OUTCOME: Allowed

Industrial Court of New South Wales

CITATION: WorkCover Authority of New South Wales ([NAME_1]) v [NAME_3] (formerly known as Linpac Rotational Mouldings Pty Limited) [2008] NSWIRComm 27

PROSECUTION: WorkCover Authority of New South Wales ([NAME_1]) PARTIES: DEFENDANT: [redacted]

CORAM: Staunton J

CATCHWORDS: Occupational health and safety - plea of guilty - general principles - foreseeability - objective seriousness of the offence - general and specific deterrence - no prior convictions - subjective features taken into consideration - penalty imposed - orders as to penalty and moiety - no costs order required.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

[COMPANY_4] v WorkCover Authority of New South Wales (2000) 99 IR 29 [COMPANY_5] v WorkCover Authority of New South Wales ([NAME_6]) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v [NAME_7]; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60

HEARING DATES: 4 March 2008

DATE OF JUDGMENT: 5 March 2008

PROSECUTION: [NAME_8] of counsel SOLICITORS: [redacted]

LEGAL REPRESENTATIVES: DEFENDANT: [redacted] SOLICITORS: [redacted]

JUDGMENT:

- 1 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J DATE: 5/3/2008

Matter No IRC 1892 of 2007 WorkCover Authority of New South Wales ([NAME_1]) v [NAME_3] (formerly known as Linpac Rotational Mouldings Pty Limited)

Prosecution arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT [2008] NSWIRComm 27 1 The defendant has entered a plea of guilty to an offence arising pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 The plea of guilty has arisen following an accident at the defendant's premises on 4 November 2005. On that day, a number of the defendant's employees, specifically [NAME_9] and [NAME_12], were attempting to de-mould a plastic water tank from a metal mould known as the '125 stand'. In the course of doing so and in the circumstances detailed in the agreed facts, [NAME_9] and [NAME_12] were using an air pressure hose to de-mould the plastic moulded product from the metal mould. In the course of doing so, the plastic tank, under intense pressure, expanded and ruptured. It resulted in the ejection of the tank at a high velocity. A portion of it struck [NAME_9] and [NAME_12] and fatally injured both of them. 3 In relation to the offence charged it is said that on 4 November 2005, at Wagga Wagga in New South Wales, the defendant: [redacted] 4 The particulars pleaded in relation to the charge are as follows: (a) At all material times the defendant was an employer.

(b) At all material times the defendant employed [NAME_9] and [NAME_12].

(c) The defendant failed to provide and/or maintain a safe system of work for the process of 'demoulding' plastic-moulded products from the mould known as the '125 stand' mould in that it did not prescribe an adequate system of work for that task.

(d) The defendant permitted and/or failed to prevent the use of a 'de-moulding technique' involving the injection of compressed air into the plastic-moulded '125 stands'.

(e) The defendant failed to provide adequate instruction, training and information to its employees in safe systems of work for the process of 'de-moulding' plastic-moulded products at the premises.

(f) The defendant failed to conduct an adequate risk assessment for the process of 'de-moulding' plastic-moulded products at the premises including the use of compressed air in the 'de-moulding' of plastic moulded products.

As a result of the abovementioned failures, [NAME_9] and [NAME_12] were placed at risk of injury and were fatally injured. 5 The prosecution have tendered a statement of agreed facts in the following terms: [1] At all material times the defendant was an employer. Background [2] At all material times the defendant's undertaking was the manufacture and distribution of rotationally moulded plastic products, including plastic water tanks and plastic water tank stands. [3] At all material times, the defendant had two manufacturing facilities located at [ADDRESS], Bomen in the State of New South Wales ('premises') and [ADDRESS], Carrum Downs in the State of Victoria.

[4] At all material times, the defendant employed approximately 107 personnel in total, including approximately 15 workers and 10 lorry drivers at the premises. [5] At all material times, the defendant employed [NAME_9], 34 years of age ([NAME_13]: 13 June 1971), as a Team Leader/[NAME_12] ([NAME_13]: 10 April 1978), 27 years of age, as a Product Specialist.

[6] At all material times, the defendant also employed: (a) [NAME_14], 62 years of age, as Assistant Moulding Specialist; (b) [NAME_15], 37 years of age, as Quality Control Officer; (c) [NAME_17], 51 years of age, as Maintenance Supervisor; (d) [NAME_16], 35 years of age, as Product Specialist; (e) [NAME_20], 58 years of age, as Moulding Specialist; (f) [NAME_22], 41 years of age, as Production Supervisor; (g) [NAME_23], 54 years of age, as Site Manager. [7] The defendant also engaged [NAME_24], 46 years of age, as a forklift driver. [NAME_24] was engaged through the labour hirer, [NAME_25]. The incident [8] At about 2.10 pm on 4 November 2005, whilst in the course of their employment with the defendant at the subject premises, [NAME_9]/ Moulding Specialist, and [NAME_12], Product Specialist, were attempting to demould a plastic water tank stand from a metal mould, known as 'the 125 stand'. [9] On 4 November 2005 there were 4 rotational moulding machines in operation at the premises. The machines were known as the '[NAME_26]', the 'Ferry 500', the Rock 'n Roll 10K and the Rock 'n Roll 11K and were owned by the defendant. [10] [NAME_16], Product Specialist, [NAME_20], Moulding Specialist, [NAME_22], [NAME_24], Forklift Driver commenced the first production shift on 4 November 2005 at 5am and finished at approximately 11am. [NAME_23], Site Manager, commenced work at 8am. [11] Three plastic water tank stand products known as a '125 stand' were produced on 4 November 2005 using the metal mould for the 125 stand which was attached to the [NAME_26] machine. With respect to each of the first two '125 stands', [NAME_24] weighed the powder for the plastic water tank stand; [NAME_21] then cooked the plastic water tank stand in the oven; and on the completion of the cooking process, [NAME_21] de-moulded the '125 stands'. With respect to the third plastic water tank stand that was cooked on 4 November 2005, [NAME_24] weighed the powder for the plastic tank stand; and [NAME_21] then cooked the plastic tank stand in the oven. But, on the completion of the cooking process, the plastic tank was left in the '125 mould' to be removed from that mould by the operators on the next shift. [12] From time to time operators had experienced the plastic water tank stand sticking to the metal mould when attempting to demould the product. [13] The defendant provided a 'mould release' product that was to be wiped onto the surface of its moulds to assist in the de-moulding of products, including the 125 stand mould. The mould release was applied intermittently on an 'as required basis', when the operators experienced the plastic mould product sticking to the metal mould. All production operators had been trained in the use of the mould release agent by the provider of the mould release agent in approximately September 2005. [14] Mould release had been applied to the 125 stand on 2 November 2005 by [NAME_21]. No mould release was applied to the 125 stand metal mould by any of the operators on 4 November 2005 and a total of four plastic water tank stands had been produced in the 125 stand metal mould since mould release had last been applied. [15] [NAME_9], Team Leader, [NAME_12], Product Specialist, and [NAME_14], Assistant Moulding Specialist, commenced their shift at the defendant's premises at 11am on 4 November 2005. [NAME_9] supervised [NAME_12] and [NAME_14]. [16] [NAME_21] provided a hand-written note to the operators on the next shift, which detailed the work to be done. The work included de-moulding the plastic water tank stand from the 125 stand metal mould attached to the [NAME_26] machine.

[17] At approximately 2pm, [NAME_9] instructed [NAME_12] and [NAME_14] to de-mould the plastic water tank stand from the 125 stand metal mould. [NAME_12] and [NAME_14] removed the metal lid from the metal mould after removing the bolts in the lid and used a lifting frame gantry to lift the lid. [18] [NAME_14] and [NAME_12] attempted to pull the plastic water tank stand out by hand, but they were not able to remove it.

[19] [NAME_9] then arrived at the [NAME_26] machine and instructed [NAME_14] to obtain the powder for another plastic mould while he assisted [NAME_12] with removing the plastic water tank stand. [20] [NAME_14] then drove the forklift down to the powder weighing area and after filling a container with powder he looked up towards the [NAME_26] machine and saw [NAME_9] standing near the mould. At about the same time, [NAME_23] walked past [NAME_9], who was standing near the 125 stand metal mould. [NAME_23] stated that he thought he saw that [NAME_9] had an air-hose in his hand at this time. [21] [NAME_14], who was mounting the forklift in the "powder area", heard an explosion. [NAME_14] also saw an object hit [NAME_9] and [NAME_9] fall to the ground. [22] [NAME_14] then ran towards [NAME_9] and when he was about 6 feet from [NAME_9], [NAME_14] saw that [NAME_12] was on the ground as well. [23] [NAME_14] ran straight to the office area of the premises and asked that an ambulance be called. [24] Later, the plastic water tank stand moulding was seen some distance from the mould. A portion of the top of the plastic moulding had broken away from the rest of the moulding. [25] Assistance was rendered to [NAME_9] and [NAME_12] by [NAME_14], [NAME_27], the Administration Officer who was also the trained first aid officer, and [NAME_23], the Site Manager until ambulance officers arrived. [NAME_9] had suffered multiple head and chest injuries and [NAME_12] had suffered severe facial and skull fractures. [NAME_9] and [NAME_12] died as a result of the injuries sustained at approximately 2.15pm. [26] [NAME_18], Maintenance Supervisor, attended the scene of the incident after hearing the explosion and noticed an air-hose moving around in the vicinity of [NAME_9] and [NAME_12]. [NAME_18] turned the air-hose off.

[27] The end of the air hose had a brass ball valve fitting which appeared to be damaged. The lever to the ball valve on the brass fitting was in the 'open' position, that is to allow air to pass through. [28] Further, a bent air wand was found on the ground in the vicinity of [NAME_9] and [NAME_12]. The air wand is an attachment that was made to be attached to the air pressure hose at the premises. The air wand was connected to a brass fitting. The brass fitting on the air wand was damaged and that damage corresponded to the damage to the brass fitting on the air hose. [29] At approximately 3pm on 4 November 2005 [NAME_2] [NAME_12] [NAME_1] attended the premises and prepared a factual inspection report. A copy of the factual inspection report dated 11 November 2005 is annexed. The rotational moulding process [30] The [NAME_26] machine was located in the southeast [NAME_28] of the premises. It was approximately 15.8 metres long, 5 metres wide and 4 metres high. The [NAME_26] machine was configured into a 4 armed independent carousel, which rotated in an anti clockwise direction. The water tank stand mould was located on the number 2 arm of the carousel, which held two smaller moulds. The other arms of the carousel contained a single metal mould. [31] The rotational moulding process involves rotating the mould through a series of heating and cooling chambers as the mould itself rotates at slow speeds melting the plastic and then cooling the plastic inside the lining of the metal mould chamber. [32] The metal mould chamber for the water tank stand mould was an oval shape approximately 1275 millimetres wide by 695 millimetres high by 490 millimetres deep and was attached to a metal arm and frame approximately 1.8 metres above the ground surface. It had a cylindrical central hub. [33] The rotational moulding process involves the following steps: · The required metal mould is selected and attached to the arm on the carousel of the rotational moulding machine. · A water based mould release is applied to the inside of a metal mould using a spray gun or wiped on with a rag when it was considered necessary by the employees involved in the production process. The mould release was not required to be applied every time a mould was produced. An excess use of mould release could distort or warp the product. · The raw powder product, which is a linear low-density polyethylene, is weighed to the required weight, then dropped into the metal mould. · A work instruction sheet details the weight of powder to be put in each mould. The powder is weighed out using scales. If too much powder is put into a metal mould it will not cook properly, unless the time for cooking and the temperature are properly adjusted. The work instruction sheet also details the period of time the mould should be cooked in the oven. · The metal lid is bolted to the outside surface of the metal mould and a vent pipe is inserted through the lid to allow air movement in and out during the heating and cooling process. A breather hole is cast into the plastic moulding, which acts as a vent. · The oven temperature and desired cooking time are programmed into the computer. Once the oven has reached the programmed temperature, the mould enters the oven from the wait station and the cooking process begins. · Inside the oven the mould rotates in two directions at a pre-determined ratio. This ratio can vary depending upon where material is required to settle and lay on the hot walls of the metal mould. · Upon exiting the oven the mould moves through a series of cooling stations. During this time the mould still continues to rotate. As the mould cools the plastic moulding inside the metal mould shrinks away from the metal mould. · Upon arrival at the unloading station, the lid on the mould is removed and the plastic moulding is removed from inside, which is known as "de-moulding". [34] A production scheduling sheet is provided to employees and sets out the plastic products to be produced on each shift. [35] If a plastic mould becomes stuck in a metal mould after it has been cooked, there were a number of ways the plastic mould could be removed from the metal mould by employees of the defendant including: (a) allowing extra time for cooling; (b) rotating the arm until such time as the mould starts to release; (c) wriggling the product and using hand force; (d) using a nylon mallet to hit around the perimeter of the tank; (e) using compressed air between the mould and the product to assist in the cooling process by allowing cool air to circulate around the product; or (f) using a saw to cut out the plastic product from the mould. [36] After the incident, it became apparent that [NAME_21] had trained some operators to use the compressed air to de-mould products by using an 'air-trigger' to blow air into the 125 plastic stand, through a small breather hole in the base of the plastic moulding. This is set out below at paragraph [47] and after the incident it became apparent that [NAME_21] and some operators were using this procedure .

Training/supervision [37] At the time of the incident the defendant employed [NAME_23] in the position of Site Manager at the premises. [NAME_23] oversaw the general operations at the premises. [38] [NAME_22] was employed in the position of [NAME_21] oversaw production scheduling and provided general supervision on the factory floor. [NAME_21] also delivered the majority of training to operators, particularly in the area of moulding and de-moulding of products. [39] Each shift had a Team Leader who also performed a supervision role. [40] [NAME_9] was 34 years of age and had been employed by the defendant for approximately 2½ years and held the position of Team Leader. [NAME_9]'s duties involved the supervision of moulding specialists and attending to the moulding and de-moulding of the rotationally moulded products. [41] [NAME_12] was 27 years of age and had been employed by the defendant for approximately 18 months and held the position of Moulding Specialist. [NAME_12]'s duties involved the moulding and de-moulding of rotationally moulded products as required by the daily schedule and under supervision by a Team Leader. [42] [NAME_14] was employed as Assistant Moulding Production for a period of 8 months prior to the incident on 4 November 2005. His duties included weighing out the powder for moulding, forklift driving and assisting the Product Specialist in the moulding and de-moulding of the water tanks. His duties also included assisting [NAME_9] and [NAME_12] with the moulding process. [43] At the time, an employee commenced to work for the defendant was provided with an induction for approximately 2 hours into the defendant's policies, including the defendant's occupational health and safety policy. [44] There were no documented procedures in relation to the extraction of plastic mouldings from a metal mould or the procedure to adopt when a plastic moulding became stuck in the metal mould. The procedure was conveyed verbally by a supervisor to an operator in the production process. This procedure included the use of compressed air to de-mould the rotationally moulded products. [45] Two methods for the use of compressed air are set out below. [46] The first method involved the use of an air-wand to blow compressed air between the inner wall of the metal moulds and the plastic moulding to cool the product down. The use of compressed air in this manner was known to senior management within the company. [47] The second method involved the use of an 'air-trigger' to blow air into the 125 plastic stand, through a small breather hole in the base of the plastic moulding. [NAME_21] stated that this process caused the plastic moulding to "move" about 10 cm out of the mould. This process was used by [NAME_21] and by some but not all operators. Senior management and a number of operators were not aware of this method being used to de-mould products. [48] [NAME_21] stated that this second method is what he had been taught to do by a previous employer who previously had owned both the [NAME_26] and the 125 stand mould in use at the premises at the time of the subject incident. [NAME_21] also stated that he taught this method to operators who were required to work with the 125 stand mould on the [NAME_26], including [NAME_12]. [49] The defendant relied upon [NAME_21]'s experience as a moulder, including his experience in the operation of the Ferry 300 and the use of the 125 stand mould. As a consequence, whilst the defendant prohibited employees from directing compressed air towards any person and explained the dangers of such action, the defendant did not undertake a risk assessment or warn employees of the hazards of associated with the use of compressed air to assist in the de-moulding of plastic moulding products from a metal mould. [NAME_9] and [NAME_12] had received training in relation to the prohibition on directing compressed air towards any person and in relation to the dangers of such action. [50] Since approximately 1995, when [NAME_21] worked with a company known as [NAME_29], [NAME_21] had adopted the process of injecting compressed air into the breather hole of the 125 tank stand to de-mould the 125 tank stand. [NAME_21] had removed a 125 tank stand from the metal mould using this process on the day of the incident. [51] [NAME_19] had been shown by [NAME_21] to blow compressed air into the vent hole in the base of the 125 stand plastic mouldings during the de-moulding process. However the vent hole was not sealed as the air hose was just pointed towards the vent hole so that it was cool circulating air with air coming out as well as going into the mould. [NAME_19] was not aware of any practice of placing an airwand inside the plastic moulding with a view of expanding the plastic moulding to release it from the metal mould. [52] About 5 weeks prior to his interview, [NAME_14] saw [NAME_12], with a piece of rag wrapped around the end of a little air-gun, poking the air-gun into the vent hole on a 125 stand, that is, a plastic moulded stand of the type involved in the subject incident. [NAME_14] had not observed the airgun being placed into the vent tube on any other occasion. [53] The tank base was almost a sealed container with the breather hole being the only opening. The tank base involved in the incident exhibited permanent deformation of the top and bottom surfaces, which could only be expected to occur from excessive internal pressurisation or force applied to the surfaces. The tank base was pressurised internally to such a degree that the plastic tank base expanded until the plastic could not hold the pressure, and ruptured at what would have been the weakest locations and in this case the weakest point appears to have been in the area of the lip of the top of the stand. The amount of internal pressure was so high that it resulted in the ejection of the tank base at a high velocity when the rupture at or about the lip of the top of the tank base occurred. Events following the incident [54] A Prohibition Notice was issued to the defendant on 4 November 2005 prohibiting the use of the rotational moulding machines until preliminary inquiries were made into the cause of the incident. [55] A further Prohibition Notice was issued to the defendant on 7 November 2005 requiring the defendant to undertake a review of the system of work used for the removal of finished products from the metal mould in the rotational moulding machines. [56] In response to this Prohibition Notice the defendant undertook the following: · a review of all Standard Work Procedures for the production of products using the [NAME_26] was undertaken and revised Standard Work Procedures were produced; · discussions with all employees regarding the system of work for the removal of finished products from the [NAME_26]; · discussions with all employees in relation to their training requirements and provided training to all employees on the safe operation of cranes; and · the use of compressed air to aid in the de-moulding process by inserting compressed air into the breather hole was prohibited by the defendant following the incident. [57] Issues relating to the use of compressed air were also communicated by the defendant to the [COMPANY_30]. [58] As at May 2006, the plastic water tank stand known as the 125 stand had not been produced by the defendant since the incident. An additional supervisor was appointed by the defendant following the incident to provide a presence of supervision on both shifts at the premises.

6 In addition to the agreed facts, the prosecution tendered the following documents without objection:

(i) Factual inspection report dated 11 November 2005; (ii) Photographs of the incident scene taken on 4 November 2005 and one taken on 7 November 2005; (iii) The defendant's Standard Work Instruction - TA1434 - relating to cooking requirements for 125 Stand; (iv) WorkCover Statement confirming the defendant has no prior convictions. 7 On behalf of the defendant, an affidavit with annexures of [NAME_31] was tendered without objection. [NAME_31] is the General Manager of [NAME_3]. He has held that position since January 2005 and prior to that was employed by the defendant in the position of Finance Director since December 1999. 8 [NAME_31] was not required for cross examination. Relevant principles 9 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

10 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

11 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: [COMPANY_5] v WorkCover Authority of New South Wales ([NAME_6]) (1999) 90 IR 464 at 474. 12 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of [COMPANY_4] v WorkCover Authority of New South Wales (2000) 99 IR 29 at [81].

13 On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in [NAME_32] v [COMPANY_33] (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

14 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at [73]-[77]. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at [74] as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, [NAME_34] v [COMPANY_35] (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 15 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v [NAME_36] at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 16 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' ([NAME_37] (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in [NAME_38] (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 17 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The [NAME_9] strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added)

18 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 19 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

20 As the defendant has no prior convictions, the maximum penalty that may be imposed is $550,000. 21 The process being undertaken by the defendant at the time of the accident was known as rotational moulding. As [NAME_31] described: [14] Rotational moulding is a process whereby plastic in a powder form is placed into a hollow, shell like metal mould. The metal mould is generally mounted on a machine known as a 'rotational moulding machine'. The metal mould is then rotated and/or rocked around two principle axes at a relatively low speed as it is heated so that the powered plastic melts and adheres to the metal mould in a single consistent layer. The metal mould is then removed from the heat and continues to rotate during a cooling phase so that the plastic retains the desired shape as it solidifies.

[15] Once the plastic is sufficiently rigid the cooling and rotation process is completed. The plastic product is then removed from the mould.

[16] Prior to placing any plastic powder into the mould, the operator assesses whether the mould requires mould release agent. It is not necessary to apply mould release on every occasion to the mould as this can damage the end product. From a layman's point of view, it is a similar process to applying oil or butter to a frypan when making pancakes. The mould release agent assists in ensuring the final plastic product does not stick to the metal mould. ... 22 As para [12] of the agreed facts discloses, from time to time the operators experienced difficulties in de-moulding the plastic water tank as it would stick to the metal mould when attempts were being made to remove it, notwithstanding the use of the mould release product as described. While all production operators had been trained in the use of the mould release in approximately September 2005, no mould release was applied to the 125 metal mould on 4 November 2005 prior to the accident involving [NAME_12] and [NAME_9]. It should be noted that the use of the mould release product was only required to be applied when considered necessary rather than before every moulding. 23 The problem of moulded products becoming stuck in the metal mould was not an occurrence that was rare. Indeed, it was one that occurred relatively frequently in the production process of de-moulding of the plastic water tanks. As para [35] of the agreed facts above confirm, the defendant had in place a number of steps that could be taken if a plastic mould became stuck in the metal mould. By [NAME_36] of emphasis, they were: (a) allowing extra time for cooling;

(b) rotating the arm until such time as the mould starts to release;

(c) wriggling the product and using hand force;

(d) using a nylon mallet to hit around the perimeter of the tank;

(e) using compressed air between the mould and the product to assist in the cooling process by allowing cool air to circulate around the product; or

(f) using a saw to cut out the plastic product from the mould. 24 By reference to sub-para (e) above, the use of compressed air in the manner stated was one of the steps able to be used. However, on the day of the incident, that was not the procedure adopted by [NAME_9] and [NAME_12]. 25 Employees of the defendant had adopted an additional technique, unknown to senior management, for extracting the plastic mould from the metal mould when they became stuck. This additional technique is at the nub of the defendant's failures. As para [47] of the agreed facts discloses: The second method involved the use of an 'air-trigger' to blow air into the 125 plastic stand, through a small breather hole in the base of the plastic moulding. [NAME_21] stated that this process caused the plastic moulding to "move" about 10 cm out of the mould. This process was used by [NAME_21] and by some but not all operators. Senior management and a number of operators were not aware of this method being used to de-mould products. 26 The 'second' procedure of using compressed air to assist in freeing plastic moulds was taught to the defendant's employees by the Production Supervisor, [NAME_21]. It was not a procedure known to or endorsed by senior management. It was not documented or risk assessed and, as events proved to [NAME_9] and [NAME_12], was inherently dangerous. 27 On any view, it was beholden on the defendant to have in place not only a system of work but a system of work that was both adequate and safe for the procedure being undertaken and all known contingencies. As the particulars of the offence disclose, the defendant has acknowledged that it failed to provide an adequate system of work in a number of relevant respects. 28 It is self evident that the use of compressed air to assist in de-moulding plastic products in the manner adopted by the defendant's employees, as identified in para [47] of the agreed facts and as emphasised above, was fraught with foreseeable and considerable risks to safety. 29 By entering a plea of guilty to the failures as identified, the defendant has acknowledged at the outset those areas where its overall system of work was clearly deficient and which, in turn, established a causal relationship between those failures and the risk to safety that arose in relation to [NAME_9] and [NAME_12]. 30 Having regard to all the facts and circumstances, it would appear the process being undertaken to de-mould the plastic mould in the manner adopted by [NAME_9] and [NAME_12] was not only undocumented but, at best, was an ad hoc system adopted on a hand-me-down basis. 31 What is of concern in this matter is that the unsafe procedure bring utilised by [NAME_9] and [NAME_12] to free the plastic mould was one that had been utilised many times before by [NAME_21], the defendant's Production Supervisor, who had been taught it by a previous employer. He, in turn, had taught the technique to a number of the defendant's employees including, it would seem, [NAME_12] and [NAME_9]. 32 While it is said the defendant's senior management did not know of or endorse this method of freeing the plastic mould, it is difficult to comprehend how this unauthorised procedure, utilised openly in the workplace on many occasions prior to 4 November 2005, was able to escape management scrutiny and remedial action. It is, on any view, a significant blemish in an otherwise commendable commitment on the part of the defendant to workplace safety. 33 The Full Bench in Capral said at [94] that 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant. 34 Further, as was stated in Capral at [82], the presence of risk of injury 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. In the circumstances before me, the risk to safety was real and foreseeable. 35 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another [NAME_36], one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 36 Following the accident, the defendant undertook the following steps: · a review of all Standard Work Procedures for the production of products using the [NAME_26] was undertaken and revised Standard Work Procedures were produced; · discussions with all employees regarding the system of work for the removal of finished products from the [NAME_26]; · discussions with all employees in relation to their training requirements and provided training to all employees on the safe operation of cranes; and · the use of compressed air to aid in the de-moulding process by inserting compressed air into the breather hole was prohibited by the defendant following the incident. 37 In most respects, all of the above steps were matters able to be undertaken by the defendant prior to the accident. 38 Given the facts and circumstances relevant to the failures of the defendant concerning this offence, I assess the offence as being above the mid range and towards the upper range of objective seriousness. I propose to approach penalty on that basis. 39 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in [NAME_39] v [NAME_40] accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 40 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v [NAME_28] (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v [NAME_41] (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 41 No issue was taken by the defendant as to the need for consideration of both general and specific deterrence. On behalf of the defendant, it was submitted that given the extensive steps taken by the defendant since the accident as well as the defendant's generally commendable approach to workplace safety, considerations of specific deterrence should be somewhat tempered. I would agree. 42 Counsel for the prosecutor acknowledged the defendant entered its plea at the very first opportunity, creating a significant utilitarian benefit. As such, the defendant is entitled to have that taken into account. In assessing the impact of the plea, the Court is guided by the decision of R v [NAME_7]; [NAME_42] (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. 43 There are powerful, additional subjective features which are able to be taken into account in further mitigation in favour of the defendant. 44 On the evidence before me, particularly the affidavit and annexed material of [NAME_31], the defendant is a company that has, in a relatively comprehensive [NAME_36], addressed its occupational health and safety responsibilities both prior to and immediately following the accident. It has, as counsel for the prosecutor acknowledged, a history of good industrial citizenship. In short, I accept that whilst this offence represents a serious deficiency in the day to day system of work at the time of the incident at its Wagga Wagga premises, I do not see that as indicative of a defendant who has in any [NAME_36] attempted to ignore or avoid its occupational health and safety responsibilities generally. The impression is very much to the contrary. 45 Additionally, as identified by [NAME_31] and agreed to by the prosecutor, the defendant has assisted the families of both [NAME_9] and [NAME_12] as follows: [92] ... (a) facilitating the families attending the site of the incident shortly after it occurred; (b) offering assistance including professional counselling services; (c) facilitating the early payment of funeral expenses pending Workers Compensation entitlements; (d) donating a perpetual trophy to the Wagga Wagga Torana Motor Club in memory of [NAME_12]; and (e) holding a ceremony on the anniversary of the incident commemorating [NAME_12] and [NAME_9] where a tree was planted and stone bench erected as a memorial. [93] In addition, I have spoken with and visited [NAME_12]'s parents and [NAME_12]'s fiancé a number of times since the incident. [NAME_43] has maintained similar contact with [NAME_9]'s brother who acted on behalf of the family. 46 Further, I accept the defendant is genuinely contrite in relation to the circumstances of the accident and the impact it has had on the families of [NAME_9] and [NAME_12]. 47 Taking into account all the factors I have referred to, I make orders as follows: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $162,500; (iii) I allocate a moiety on penalty to the prosecutor on the usual terms. 48 As the defendant has already paid the prosecutor's costs, no costs order is required.

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