Inspector Cobbin v Thomas & Coffey Limited (ACN 000 263 678) [2012] NSWIRComm 46

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Cobbin v Thomas & Coffey Limited (ACN 000 263 678) [2012] NSWIRComm 46 Hearing dates: 31/01/2012 Decision date: 30 May 2012 Before: Backman J Decision: In Matter No 302 of 2011: (1) The defendant is convicted of the offence and fined an amount of $120,000 with a moiety to the prosecutor. (2) The defendant shall pay the costs of the prosecutor as agreed or assessed. In Matter No 303 of 2011: (1) The defendant is convicted of the offence and fined an amount of $150,000 with a moiety to the prosecutor. (2) The defendant shall pay the costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 (the Act) - pleas of guilty entered to one offence under s 8(1) and one offence under s 8(2) of the Act - non-employee seriously injured while attempting to hook up a steel frame to lifting chains attached to a crane - non-employee not made aware that defendant's employees earlier had removed hold-down nuts from the frame leaving it unsecured - risk of steel frame falling over and crushing workers underneath - risk reasonably foreseeable and obvious - simple and available steps could have avoided the risk - likely consequences of breach of each offence were serious - objective seriousness of each offence falls to be assessed by reference to the charges - error or negligence of defendant's employees taken into account - deterrence - maximum penalty - subjective factors - totality - victim impact statement - orders Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71; (2000) 99 IR 29 Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 Category: Principal judgment Parties: Inspector Wayne Cobbin (Prosecutor) Thomas & Coffey Limited (ACN 000 263 678) (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr J Simpson (Defendant) Legal Group WorkCover Authority of New South Wales (Prosecutor) Arnold Bloch Leibler (Defendant) File Number(s): IRC 302 of 2011 IRC 303 of 2011

Judgment 1Thomas & Coffey Limited (the defendant) pleaded guilty to two amended charges under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 (the Act). Both charges arise from an incident which occurred on 30 March 2009 at the Commonwealth Rolling Mills (the premises) where certain workers were in the process of slinging a dip-rail steel frame which weighed about 1.7 tonnes. The frame toppled over crushing one of the workers, David Wormleaton, causing serious injuries necessitating the amputation of his right leg just below the knee. 2At the time of the offences, the premises were owned and occupied by Bluescope Steel (AIS) Pty Limited (Bluescope). Bluescope had commissioned a new sinter cooling plant (the cooler) for installation at the premises. Before its final installation, Bluescope arranged for its testing which entailed its dismantling. Bluescope entered into a contract with Transfield Services Australia Limited (Transfield) to provide the labour and contractors in order to undertake the installation. Transfield subcontracted the defendant to provide the labour, materials and equipment for the dismantling process at the premises. Under a Purchase Order generated for the scope of work, Mark Sheldon, employed by Transfield, was to direct the work. 3The defendant supplied a number of its employees to undertake the dismantling process. They included Peter Reichardt, the supervisor, Scott Rodgers, leading hand boilermaker, Joe Zappia and Frank Kerr, fitters, Alan Neves and Vito Esposito, riggers, and Steve Ashton, a boilermaker. 4The dismantling of the cooler required the use of a crane. Transfield contracted Allstate Cranes & Plant Hire Pty Ltd (Allstate) to provide the cranage. Mr Wormleaton was employed by Allstate as a dogman. Dean Graham was also employed by Allstate as a dogman, Darcy Rolfe as the crane driver, and Wayne Fuller as a supervisor. 5The cooler, which is an elevated hollow circular structure, was held by two curved rail tracks forming part of elevated track cars which moved along in a continuous sequence. The dip-rail of the elevated curved tracks was a section in the rails which dipped down to allow discharge from the cars into a conveyor below. The testing of the cooler took place in a remote corner of the premises which was completely fenced off with controlled access to the area. All visitors, including Bluescope personnel, were required to sign the visitor's register before access was granted.

The incident 6The circumstances leading up to the incident, and the incident itself, have been set out in an Agreed Facts document, the relevant parts of which are extracted below: On 30 March 2009, Allstate were contracted by Transfield to work with the defendant to dismantle and remove the dip rail panels, rails and frames of the sinter plant cooling trial using a 100 tonne Grove Truck mounted crane ("Allstate Crane"). David Wormleaton, Dean Graham and Darcy Rolfe ("Allstate Crew") were the assigned crew to work on the Allstate Crane. The Allstate Crane and Allstate Crew were late to the site, so that work could start for the day, the defendant undertook the tool box meeting. On the 30 March 2009 work commenced at the premises at approximately 7am. David Wormleaton, Dean Graham, Darcy Rolfe and Wayne Fuller arrived at approximately 9.30am and attended a tool box meeting outside the premises conducted by Lance Wise from Transfield Services which covered general site activities and hazards. The Allstate Crew were then inducted by Peter Reichardt, Supervisor employed by the defendant, into the specific site at which the work would be undertaken. The Allstate crew attended the Thomas & Coffey job start and read through the Job Safety and Environmental Assessment ("JSEA"). Following the job start session, the Allstate Crew together with Wayne Fuller conducted their own JSEA and lift study. The Allstate Crew together with Thomas & Coffey crew commenced work on the dismantling of the Sinter Cooler. As part of the dismantling process, the 7.5 tonne Dip Rail panels of the cooler were required to be removed from the Dip Rail pit area. The workers were then required to remove the side bracing of the Dip Rail structure which comprised of two in situ beams and four beams lying in the work area. The two in situ beams were each secured separately to a concrete pad by four hold down studs with nuts. The dip-rail frame was made of fabricated steel measuring approximately 2.3 metres high by 8.1 metres long and weighing approximately 1.7 tonnes. The dip-rail frame that had to be removed was situated under the top rail structure. Because of the minimal clearance between the frame and the top rail structure, the frame had to either be tilted over and then lifted clear by the crane or lifted slightly by the crane and the hold-down studs cut to allow it be moved sideways and then lifted. Around 11am the removal of the outer dip rail panel commenced. However Peter Reichardt requested that the load be re-slung as he was not happy with (sic). At around 12pm the removal of the inner dip rail panel was commenced. This job was completed successfully without incident. Around 1pm Scott Rodgers had a discussion with Alan Neves, David Wormleaton and Steve Ashton. Scott Rodgers gave instructions to Alan Neves and David Wormleaton to sling the top beams. He requested that once this had been done that the fitters - Joe Zappia and Frank Kerr, remove the bolts on to top beams and then the riggers - Alan Neves and Vito Esposito, remove the beams. Alan Neves, David Wormleaton and Steve Ashton discussed how to remove the bottom support frames as there was not enough clearance due to the height of the threaded bar securing the frame to the ground and the minimum clearance of the structure/ledge it sat under. It was decided that Steve Ashton, boiler maker would cut the hold down bolts once Alan Neves and David Wormleaton had secured the frame. The frame would then be swung out then lifted. Scott Rodgers then left the area to check upon other works being undertaken at the premises. At approximately 2:00pm, Joe Zappia and Frank Kerr proceeded to loosen and remove the hold down nuts marked "1", "2" and "3" on the bottom beams of the structure which secured it to the concrete pads leaving the dip rail frame unsecured. David Wormleaton and Alan Neves commenced work on both the inner and out tie beams which they removed and placed in the holding area. David Wormleaton and Alan Neves were attempting to hook up one of the dip-rail frames to lifting chains that were attached to the crane. Dean Graham was standing in the pit area near David Wormleaton, acting as a spotter. Alan Neves reached up and slung the chain over one end of the structure and hooked on. David Wormleaton threw another set of chains over the structure but was not tall enough to hook on. Alan Neves commenced to step up onto the bottom beam of the structure to attach the chain sling. As he did so the structure started to sway. Dean Graham noticed the frame sway, yelled out and ran away from the area. Frank Kerr also observed the structure move and yelled out to everyone to clear the area. David Wormleaton commenced to run away from the area, as he was doing so the frame toppled over landed on David Wormleaton's leg, causing crush injuries that resulted in the amputation of his right leg just below the knee. Alan Neves was unhurt. At the time that David Wormleaton and Alan Neves were performing the tasks ready to remove the panels they were unaware that the hold down nuts had been removed from the studs. Immediately following the incident, various persons inspected the concrete pads and the hold down studs and nuts of the two in situ beams. The inspection revealed that all eight nuts had been either loosened or removed from both in situ frames making the frames both unstable.

Objective factors 7The prosecution relied on three factors to illustrate that the offences were, objectively, "most serious". These were, that the risk to safety was foreseeable; simple and readily available steps were available to the defendant to avoid the risk; and, the likely consequences of the breach of each offence were serious. 8The risk to safety is particularised in each of the amended charges as the risk of the dip-rail frame falling over and crushing workers underneath it. The prosecution submitted, and the Court agrees, that this risk was both known and obvious. The Agreed Facts reveal that Mr Rodgers, during a discussion with the workers assigned to undertake the task, instructed them to sling the top beams (thereby securing the frame) and then to remove the beams. After issuing these instructions he left the area. Despite his clear instruction, Messrs Zappia and Kerr (employees of the defendant) proceeded in reverse order to loosen and remove the hold down nuts on the bottom beams of the structure thereby leaving the dip-rail frame unsecured. 9A Job Safety and Environmental Assessment form (JSEA) prepared by the defendant, specifically for the removal of the outer and inner dip-rail panels on 30 March 2009, expressly adverted to the risk of "crush injuries" when "rigging the outer dip-rail panel for lifting". The signatures of both Mr Zappia and Mr Kerr appear on the Worker Sign On Sheet attached to the JSEA as do the signatures of Messrs Rodgers, Esposito, Neves and Ashton, all employees of the defendant. The document does not contain the signatures of any Allstate employees. 10These facts demonstrate, at minimum, that the risk was foreseeable. It was an obvious risk to safety by reason of the unsecured dip-rail frame's weight (1.7 tonnes) and its dimensions (2.3 metres high by 8.1 metres long). 11The simple steps available to the defendant to obviate the risk are demonstrated by reference to the particulars which appear in the amended charges. These include having in place and enforcing a system of work that: (i) Required and ensured that the hold down studs for the dip-rail frame would not be removed until the dip-rail frame had been secured or attached to the crane which was to lift it; (ii) Required and ensured that its employees checked that the hold down studs for the dip-rail frame had not been removed before climbing onto it or continuing to work with it or near it; (iii) Required and ensured that its employees inform each other when the hold down studs had been removed to the dip-rail frame so that they knew that the dip-rail frame was unsecured and presented a risk; (iv) Required and ensured that the dip-rail frame was secure at all times when its employees were working in or in the vicinity of the dip-rail frame; and (v) Ensured that its employees had received adequate training to ensure that they understood the matters set out in (i)-(iv) above. 12Further available steps would also have included the implementation of a risk assessment identifying the risk of the dip-rail frame falling over if the hold down studs were removed prior to securing the frame with the crane, and ensuring that adequate consultation took place with all the workers involved in the work. In addition, an adequate level of supervision of the workers would have prevented the removal of the hold down studs prior to the frame being secured to the crane. The facts do not disclose any reasons why Messrs Zappia and Kerr made the unilateral decision to remove the hold down studs before the frame was secured, contrary to the verbal instruction given by Mr Rodgers. Mr Wormleaton and other members of the Allstate work crew were not made aware of the decision. It should be emphasised, however, that the Court regards this informal method of instruction as an inadequate means of ensuring that the workers followed the particular sequence of work. The conclusion is even more compelling when regard is had to the seriousness of the risk which arose when Mr Wormleaton and other workers were exposed to the unsecured frame weighing about 1.7 tonnes. 13The likely consequences of exposure to the risk were most serious. Given the weight of the unsecured frames, as well as its dimensions, the risk of it falling over and crushing those workers in its vicinity could well have resulted in very serious injuries, even fatal injuries. The fact that Mr Wormleaton suffered very serious injuries demonstrates these likely consequences. 14The objective seriousness of an offence falls to be assessed by reference to the charges, that is, by reference to those acts or omissions, such as the systems of work which the defendant is alleged to have failed to have in place thereby exposing persons identified in the charges to a risk to safety: Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [76]. It follows from this observation that a system of work put in place prior to the offence by a defendant that bears no resemblance, or has no connection to the acts or omissions alleged in the charge, has no, or little, relevance to an assessment of the objective seriousness of the offence. 15In the present proceedings, however, the evidence reveals the existence of systems of work in place prior to the offences which serve to mitigate the objective seriousness of the offence. The defendant had in place a system of work specifically directed to the task of removing the outer dip-rail panel. This system was set out in the JSEA generated on 30 March 2009 (to which I have earlier referred). Messrs Zappia and Kerr appear to have been inducted to this system because their signatures appear on the worker sign on sheet. On page 7 of the JSEA, there appear two instructions, nominated as 7 and 8 under the heading "Work Sequence". It was brought to the Court's attention by the prosecution that the instructions on page 7 indicated, or could indicate, the sequence of work intended by the defendant to be undertaken with regard to the removal of the dip-rail panel. Item 7 is headed "Rig Outer Dip-Rail Panel for Lifting". Item 8 is headed "Break Outer Dip-Rail Panel Bolted Connections". On the reasonable assumption that Item 8 refers to the removal of the hold-down bolts, the document on its face does suggest that the intended sequence of work was first to rig the dip-rail panel, and, secondly to remove the hold-down nuts. 16So construed, this suggests that Messrs Zappia and Kerr were made aware of the correct sequence in which the work was intended to occur. In addition to this there is the unchallenged evidence that Messrs Zappia and Kerr were present when Mr Rodgers issued verbal instructions to rig the frame first and then remove the hold-down bolts. When these matters are taken together, the conclusion is available that the error or negligence of the employees impacts, to some extent, on the degree of culpability of the defendant: Inspector Dall v Ullrich Aluminium Pty Ltd [2011] NSWIRComm 156 per Boland J, President, at [48], following Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]. 17This conclusion takes into account the Court's earlier conclusion that Mr Rodgers' verbal instruction was an inadequate means of ensuring that the employees followed the correct sequence of work. As the documentation demonstrates, the defendant knew the nature of the risk involved in the work. The absence of their signatures on the JSEA Worker Sign-on sheet suggests that Mr Wormleaton and the other members of the Allstate crew were not present when the scope of work set out in the JSEA was explained to the defendant's employees. According to the Agreed Facts the Allstate crew were inducted by Mr Reichardt, "into the specific site at which the work would be undertaken". No further details are forthcoming as to what this induction entailed or what information was given to those workers. 18Before leaving this particular issue, mention should be made of handwritten notation on the JSEA form, which consists of an instruction with regard to work described as "Take dip-rail frame out". The notation alongside this instruction reads, "* cut bolts after load rigged up". It was conceded by the defendant that this entry was made by Mr Rodgers after the incident on 30 March 2009. The prosecution placed no reliance on the timing of the entry as an aggravating factor. Accordingly, it is only mentioned here for the sake of completeness. 19The defendant also relied on a number of procedures which it had put in place prior to the offences, in mitigation of their objective seriousness. These procedures were devised expressly for the testing of the new cooler. They are set out in a lengthy and comprehensive document headed, "Safety Management Plan CO-CM008 - Cooler Trial Assembly and Associated Work". The procedures set out in that Plan have been summarised by the defendant in written submissions and are extracted below: (a) a comprehensive project safety management plan (PSMP) was drafted and put in place, which required (among other things): (i) toolbox meetings at the start of each shift or at any time there was a significant change in the job site or job scope; (ii) completion of JSEA/SWMS to conform to the requirements of the Act; (iii) lift assessments to be conducted for all crane lifts; (iv) hazard risk assessments for lifting and loads; (v) a JSEA checklist; and (vi) overall project management process; (b) in accordance with the PSMP, regular (generally weekly) OHS consultation meetings occurred - the most recent prior to the incident occurred on 30 March 2009; (c) regular audits of HSE practices at the Project were undertaken, including assessments as to whether: (i) appropriate hazard identification for tasks was being undertaken in for JSEAs, SWMSs, and toolbox meetings; (ii) all involved had signed the relevant JSEA/toolbox minutes; (iii) all the controls were implemented to mitigate the hazards. 20The defendant frankly conceded that these processes, although put in place for the testing of the cooler, were deficient in a number of respects. These deficiencies are reflected in the defendant's pleas of guilty to the amended charges. In written submissions, the defendant nominated the following matters, referred to as "The crux of the breach in this case", which illustrate deficiencies in its processes for testing the cooler: (a) whilst there was a toolbox meeting to discuss the work for the day between Thomas & Coffey employees, and a separate toolbox meeting between Transfield and Allstate employees, there should have been a specific toolbox meeting between the Allstate and Thomas & Coffey teams to discuss the work being undertaken; (b) at that toolbox meeting, a discussion should have occurred around the Job Safety & Environment Analysis (JSEA), confirming that the load should have been slung prior to the bolts being removed; (c) supervision with respect to both Thomas & Coffey and Allstate should have ensured that both (a) and (b) should have occurred. 21The existence of the defendant's Plan, and its partial implementation with regard to the work being conducted by the defendant's employees and the Allstate workers on 30 March 2009, demonstrates that the defendant had at least directed its mind to safety issues in connection with the testing of the new cooler, including the dismantling of the dip-rail frames on 30 March 2009. Accordingly, it is appropriate to take these matters into account on the basis that they mitigate, to some extent, the otherwise objective seriousness of the offences.

Deterrence 22The defendant conceded that the penalties to be imposed should take account of the principle of general deterrence as a reflection of the objective seriousness of the offences. In the Court's view, there is an obvious need for those industries which employ cranes to rig heavy equipment or other items to ensure that safe work methods are both adequate and properly in place for slewing and non-slewing cranes. Risk assessments must also be adequate and properly implemented so that all relevant risks to safety associated with rigging equipment and other items are considered and identified, and, all workers engaged to perform relevant tasks are made aware of, and are properly instructed in relation to the risks. 23The defendant contended that there was no necessity for the application of specific deterrence, having regard to the following factors: (a) the substantial and comprehensive HSE systems in place prior to and at the time of the incident; (b) the excellent safety record of Thomas & Coffey, particularly given the high risk industry it operates in; (c) the immediate steps it took after the Incident to ensure that a similar incident did not occur again; and (d) the significant ongoing commitment of Thomas & Coffey to ensure zero harm to employees and other persons through its HSE systems, procedures and management. 24The Court cannot agree that the principle has no application, given the circumstances of the offences. The correct approach, which the Court will apply, is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71; (2000) 99 IR 29 at [76] to [77]. This approach indicates that the Court may take into account a defendant's attitude to questions of workplace safety and any steps taken to improving safety following an accident but that the principle should only be disregarded where the Court is satisfied that the risk of re-offending is low or non-existent. Here, the Court cannot be so satisfied. The defendant continues to be an employer, therefore risks to the safety of its employees or contractors, "may exist or be possible": at [77].

Maximum Penalty 25The defendant has prior convictions. The maximum penalty applicable to each offence accordingly is $825,000.

Subjective factors 26The defendant relies on a number of subjective factors in mitigation of the penalties to be imposed. The prosecution conceded that those factors may be taken into account by the sentencing Court. 27Prior to the offences, the defendant had in place safety systems designed to ensure that JSEAs were properly undertaken. In addition, the defendant carried out audits specific to those employees involved in the work being performed at the time of the incident to ensure they undertook proper hazard identification. Audits had been carried out on dates reasonably proximate to the incident date (on 17, 10, 7 and 3 March 2009 and on 25 February 2009). All the audits involved assessments concerning whether appropriate hazard identification for risks had been undertaken in JSEAs, SWMs and toolbox meetings. They also included assessing whether the employees had signed relevant JSEAs and/or toolbox minutes, and whether all controls had been implemented to mitigate hazards. Regular consultation also occurred between employees and contractors. 28Other subjective factors relied upon by the defendant, about which there was no dispute, have been conveniently set out, in written submissions, extracted below: Action taken after the Incident Thomas & Coffey took significant and immediate action after the Incident to ensure a similar incident would not occur again. The following immediate action was undertaken: (a) undertaking a comprehensive investigation to ascertain the cause of the Incident; (b) safety alerts were issued across Thomas & Coffey; (c) instructions were issued to all Thomas & Coffey managers, supervisors and leading hands as to the expectations regarding consultation processes around safe systems of work with other contractors; (d) a further safety alert was issued to all relevant Thomas & Coffey employees via morning toolbox talks to highlight the Incident and corrective measures in place; (e) the safety documentation regarding the work being undertaken at the time of the Incident was reviewed to ensure that it reflected work being performed; (f) consultation with other contractors was undertaken in the review of the safety documentation; and (g) Thomas & Coffey employees at the site were retrained in the use and implementation of the safety documentation. The following action was undertaken within one month after the Incident. (a) The JSEA and work method statement training pack was modified to highlight consultation with other contractors and the need to develop Safe Work Systems. (b) Employees engaged in supervision were retrained in JSEA and work method statement training package and risk assessment/hazard identification. (c) Employees engaged in supervision to attend a course on the effective delivery of toolbox talks. (d) A safe work method statement - JSEA review form was developed for use on assessing the quality and accuracy of other contractors' documentation. (e) Further modifications to the work method statement were made to include the assignment of a person or persons responsible for a particular job step or task. Further subsequent action in response to the Incident included: (a) additional critical risk awareness (competency based training) was developed and rolled out to all employees; (b) the induction training and supervisor handbook was reviewed to incorporate lessons learned; (c) a "take 5" procedure was developed and implemented whereby employees are prompted via a simple checklist to stand back and consider the risks and hazards before commencing tasks. Action taken with respect to Mr Wormleaton Thomas & Coffey was extremely concerned as to the welfare of Mr Wormleaton. Throughout his hospitalisation and rehabilitation, various senior representatives of Thomas & Coffey kept in regular contact with Allstate to ensure Mr Wormleaton and his family were receiving all possible assistance. To ensure that Mr Wormleaton and his family were not in any financial stress in the period immediately after the incident, Thomas & Coffey made an unconditional cash payment directly to Mr Wormleaton. Thomas & Coffey staff actively participated in fundraisers held to assist Mr Wormleaton. Thomas & Coffey regularly reiterated to Allstate that it would offer any assistance and support to it and to Mr Wormleaton as required. Together with Transfield and Allstate, Thomas & Coffey made a donation to the Amputee Association, the charity nominated by Mr Wormleaton. Remorse The Incident has had a great impact on the management and employees of Thomas & Coffey. Management has expressed its regret that the incident occurred and its effect on Mr Wormleaton. Its actions taken after the incident both with respect to Mr Wormleaton and the steps it has taken after the incident bear this out. Ongoing commitment to HSE and zero injuries Thomas & Coffey continues to place priority of ensuring the health and safety of its employees and other persons is secured through comprehensive HSE policies and practices. The OHSEMS continues to be revised and updated, and is supported by a substantial team of HSE experts. The list of policies and processes contained in the OHSEMS is set out in annexure A of the affidavit of Phillip Brodie. In particular, the HSE responsibilities and management commitment policy clearly sets the approach of senior management and the board, and sets out the expectations on employees and contractors across all levels of the organisation. Excellent Safety Record This is the only significant safety incident in the 86 year history of Thomas & Coffey. This is an exceptional record given that Thomas & Coffey employees (sic) over 1000 employees in one of the most high risk industries. Thomas & Coffey's ongoing safety record has been recognised in a number of safety awards, including: (a) February 2009, 1000 Day Injury Free Award - BHP Billiton; (b) May 2009, Safety and Environmental Achievement Award - BlueScope Steel Coke Ovens; (c) November 2009, Highly Commended for Living Safety Award - BlueScope Steel; (d) January 2010, Pride in the Workplace and Housekeeping Award - BlueScope Steel; (e) November 2010, Ministers Award for Excellence Winner Australian Apprentices - Australian Government; (f) November 2011, Highly Commended for Living Safety Award - BlueScope Steel; and (g) December 2011, Excellence in Safety Performance - Australian Industry Group. Corporate Citizenship Thomas & Coffey takes an active role in the community as a good corporate citizen. Examples of local support in the Illawarra community include: (a) Camp Quality; (b) numerous Surf Life Saving Clubs throughout the Illawarra; (c) Wollongong Hospital; (d) Rotary Clubs in the Illawarra region; (e) Kidzwish; (f) Men's Health Check Illawarra; (g) Father Chris Riley's Youth off the Streets; and (h) numerous junior sporting groups. Co-operation with WorkCover NSW Thomas & Coffey fully co-operated with WorkCover NSW throughout the investigation of this matter. Early Plea of Guilty Thomas & Coffey entered an early plea of guilty at the first available opportunity once the final particulars of the charge were settled by WorkCover NSW. Accordingly, it is submitted that Thomas & Coffey should be given the benefit of the maximum discount on penalty having regard to the early plea of guilty. 29These subjective factors are all relevant to the sentencing process and will be taken into account by the Court in the defendant's favour when imposing penalties. With regard to the early pleas of guilty, the Court awards a discount of 25 per cent for each offence (reflecting the utilitarian value of the pleas).

Totality 30The totality principle is also relevant to the sentencing proceedings. The factual background underpinning each offence reveals substantial overlap. Both prosecutions arise from the same incident. Given these matters, the Court considers that it is appropriate to follow the approach of Boland J, President, in Inspector Dall v Ullrich Aluminium at [78] and [79] where his Honour said: [78] In considering totality, the court must look to the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]. [79] It would clearly not be appropriate to fix a penalty in respect of the offence involving Mr Murrell and simply double it. That would be to impose a "crushing sentence" on the defendant, inconsistent with its prospects for rehabilitation. However, it would also not be appropriate to fix a penalty for the offence involving Mr Murrell and regard that as a "just and appropriate measure of the total criminality involved": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308 per McHugh J. To do so would pay no regard to the fact that the defendant had failed to ensure two persons, an employee and an employee of a labour hire firm, were not exposed to risk. The defendant had an obligation to ensure both persons were not exposed to risk and the penalty must reflect the seriousness of the defendant's failure in that respect. 31Having regard to the circumstances of each offence, the Court concludes that the s 8(1) offence should attract a penalty of $160,000 and the s 8(2) offence a penalty of $200,000. Taking into account the principle of totality, a penalty of $270,000 should be imposed as an appropriate reflection of the defendant's total criminality. This penalty will be further divided between the two charges by imposing a penalty of $120,000 for the s 8(1) offence, and $150,000 for the s 8(2) offence.

Victim Impact Statement 32After the conclusion of the sentence proceedings, the Court received from the prosecution a Victim Impact Statement signed by Mr Wormleaton's wife, Jodie Ann Wormleaton. In that statement, Ms Wormleaton describes the dreadful impact of her husband's injuries. Over the three years since the accident, Mr Wormleaton has undergone numerous medical procedures. During his initial hospitalisation, Mr Wormleaton contracted golden staph which was passed on to his wife and his daughter. This has caused great suffering and distress to the whole family. In addition, Ms Wormleaton writes of the diminished quality of life experienced by all family members as a result of her husband's injuries. Mr Wormleaton is no longer the main income earner in his family. His self-esteem has suffered, he is very restricted when undertaking normal household tasks and suffers a number of side effects as the result of medication prescribed for pain relief. 33These matters show that the family has suffered enormously as a direct consequence of the accident of 30 March 2009. Although the Court is unable to take into account the effect of the accident on Mr Wormleaton and his family in determining penalty, nevertheless the Court expresses its deepest sympathy to the family.

Orders 34The Court makes the following orders: In Matter No 302 of 2011: (1) The defendant is convicted of the offence and fined an amount of $120,000 with a moiety to the prosecutor. (2) The defendant shall pay the costs of the prosecutor as agreed or assessed. In Matter No 303 of 2011: (1) The defendant is convicted of the offence and fined an amount of $150,000 with a moiety to the prosecutor. (2) The defendant shall pay the costs of the prosecutor as agreed or assessed. * * * * * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2012