Inspector Alan Jones v Karimbla Construction Services Pty Ltd

Industrial Relations Commission (NSW)|1994-05-20|Before: Kavanagh J

CITATION: Inspector Alan Jones v Karimbla Construction Services Pty Ltd [2007] NSWIRComm 124

Prosecutor: Inspector Alan Jones PARTIES: Defendant: Karimbla Construction Services Pty Ltd

CATCHWORDS: OH&S Act - s8(1) & s8(2) - Guilty pleas - accident at building site - crane overturned - no injury - corporate defendant subcontracted to crane company - failure of subcontractor to implement existing system for safe working - failure of subcontractor to ensure crane operating properly - defendant failed to ensure supervision of crane lift - principle of parity - previous judgment against crane company for breach - principle of totality - two charges - maximum penalty for each offence $550,000 - penalty imposed

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

Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Robert William Regan v Anglo Coal (Kayuga Management) Pty Ltd [2007] NSWIRC 12

Prosecutor: Mr D.B. O'Neil of counsel Solicitors: Ms F. Miller WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendants: Mr M.L. Shume of counsel Solicitors: Mr D. Grynberg/Ms K. Mihail Meriton Apartments Pty Ltd

INSPECTOR ALAN JONES v KARIMBLA CONSTRUCTION SERVICES PTY LTD

Prosecution under s8(2) of the Occupational Health and Safety Act 2000

INSPECTOR ALAN JONES v KARIMBLA CONSTRUCTION SERVICES PTY LTD

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 By way of Amended Applications for Order, two prosecutions are brought by Inspector Alan Jones of the WorkCover Authority of New South Wales against Karimbla Construction Services Pty Ltd, one under s8(1) and the other under s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 In Matter No IRC5522 of 2005, it is alleged the defendant contravened s8(1) of the Act in that it failed to: ensure the health, safety and welfare at work of all its employees and in particular, Daniel Upton, contrary to s8(1) of the Occupational Health and Safety Act 2000. In particular the defendant: a) Failed to provide and maintain a safe system of work for the moving of construction materials by mobile crane at the site: i) in that it failed to consider and assess the job safety analysis of Anywhere Tower Cranes Pty Ltd. b) Failed to ensure that plant being a Tadano mobile crane was operating properly and in particular that the weight gauge of the crane operated properly: i) in that the defendant failed to make enquiries of the crane operator as to whether the crane was operating properly c) Failed to provide adequate supervision to persons engaging in crane operation activities at the site by failing to ensure either a suitably qualified supervisor or a supervisor adequately instructed and informed in a safe work method statement was present at the site. d) As a result of the defendant's failures Daniel Upton was placed at risk of injury.

3 In Matter No IRC5521 of 2005, it is alleged the defendant contravened s8(2) of the Act in that it failed to: ensure that persons other than its employees, and in particular, Rodney Wall, Ross Walsh, Mathew Ardus, and William Karydis, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to s8(2) of the Occupational Health and Safety Act 2000. In particular the defendant: a) Failed to provide and maintain a safe system of work for the moving of construction materials by mobile crane at the site: i) in that it failed to consider and assess the job safety analysis of Anywhere Tower Cranes Pty Ltd. b) Failed to ensure that plant being a Tadano mobile crane was operating properly and in particular that the weight gauge of the crane operated properly: i) in that the defendant failed to make enquiries of the crane operator as to whether the crane was operating properly c) Failed to provide adequate supervision to persons engaging in crane operation activities at the site by failing to ensure either a suitably qualified supervisor or a supervisor adequately instructed and informed in a safe work method statement was present at the site. d) As a result of the defendant's failures Rodney Wall, Ross Walsh, Mathew Ardus and William Karydis were placed at risk of injury. 4 The defendant pleads guilty to the charge. 5 Mr D.B. O'Neil, of counsel, appeared for the prosecution and Mr M.L. Shume, of counsel, appeared for the defendant in both matters. The prosecution relied upon one Agreed Statement of Facts; 12 colour photographs taken by Inspector Whitehead; a factual inspection report of Inspector Whitehead; a factual inspection report of Inspector Jones; Anywhere Tower Cranes' Job Safety Analysis (JSA) WorkSheet and the Crane Check Sheet. 6 The defendant tendered the affidavit of Murray Brighton, Safety Manager, Karimbla Construction Services Pty Ltd and bundle of exhibits covering all the pre-existing documentation of the company related to its safe working procedures and its amended policies and work procedures. It also tendered in evidence a draft expert's report by Mr Paul Kiem, Paul's Crane Inspections Pty Ltd, dated 30 April 2007. 7 The Agreed Statement of Facts is similar to both prosecutions and relevantly reads: 3. The defendant was an employer. 4. Meriton Apartments Pty Ltd ('Meriton") was the owner/developer of a construction site located at the Corner of George and Charles Street, Parramatta ('the site"). 5. The defendant was contracted by Meriton to be the builder of the apartment development being constructed at the site. 6. Anywhere Tower Cranes Pty Ltd ('Anywhere") had an agreement with the defendant to provide crane, crane crew and personnel to carry out traffic control at the site if and when required. There was no written contract between Anywhere and the defendant. Anywhere sent invoices to the defendant for the labour and equipment provided by Anywhere at the site. 7. On 6 November 2003 Anywhere provided a 50 Tonne Tadano crane with serial number 435924 ("the crane") for use at the site. The crane was owned by Santino's Cranes Pty Ltd ("Santinos"). Anywhere was responsible for costs of the maintenance and repair of the crane. 8. Anywhere had an agreement with Cashbend NSW Pty Ltd ("Cashbend"), a labour hire company, to the effect that required Cashbend to provide a crane crew to operate the crane at the site. 9. Anywhere also had an agreement with Clearwater Traffic Control ('Clearwater") that required Clearwater to provide personnel for traffic control duties for the site. 10. On 6 November 2003 Ross Walsh was employed by Cashbend as a crane driver and was undertaking crane operator duties at the site. Ross Walsh had been a certified crane driver for approximately 25 years and had been in the industry for 36 years. 11. On 6 November 2003 Rodney Wall and Alex Milenov were also employed by Cashbend and were undertaking dogman duties at the site. Rodney Wall had been a certified dogman for approximately 10 years. Alex Milenov had been a certified dogman for approximately 6 years. 12. On the 6 November 2003 at approximately 10:20am the crane being operated by Ross Walsh became unstable and toppled over while attempting to lifting fibre cement (wallboard) sheeting in Charles Street, Parramatta. 13. Prior to the incident two pallets of gyprock sheeting had been unloaded by the crane crew from the same truck that the wallboard was lifted from which was located at the northern end of Charles Street, adjacent to the front of the crane carrier. 14. The pallets of gyprock sheeting had been slung by Alex Milenov and were moved in two separate lifts to an area located to the north of the crane where they were positioned on the overhead hoarding by the receiving dogman, Rodney Wall. The operating radius of the crane during this operation was approximately 10m. 15. Ross Walsh estimated that the gyprock sheeting lifted on 6 November 2003 weighed approximately 1.8 tonne. These weights were within the working load limit of the crane considering the operating radius of the crane was approximately 10 metres. 16. Following the completion of these lifts a third lift was to be carried out from the truck towards an area located on the southern end of the hoarding at a radius of approximately 21 metres. Alex Milenov proceeded to sling a load of wallboard sheeting. The crane operator, Ross Walsh was not told that the load being lifted at the time the incident occurred had been changed from gyprock to wallboard sheeting. 17. Ross Walsh then raised the load to a height of approximately 40m while luffing the boom up to enable the safety screens of the building to be cleared. He then proceeded to slew the crane around towards the building under construction. When the boom had cleared the building Walsh then jibbed down to an operating radius of approximately 21 metres. At this stage he received a signal from Rodney Wall to lower the hook. Ross Walsh then ceased jibbing down and proceeded to lower the load. Ross Walsh then noticed that the crane was starting to become unstable. He attempted to jib up but was unable to prevent the crane from becoming unstable. 18. The crane then toppled over towards the southern end of Charles Street, where the boom struck a truck mounted concrete placing boom that was being operated from level 7 of the building under construction. 19. The boom struck the barrel of a concrete delivery truck narrowly missing two employees of Boral Concrete, William Karydis and Mathew Ardus, before it came to rest in Charles Street. 20. The wallboard sheeting landed on top of a wheelbarrow on the site, narrowly missing Daniel Upton, an employee of the defendant who was preparing to move the wheelbarrow. 21. Rodney Wall who was waiting to receive the load, ran for cover under the building under construction when he saw the crane falling towards him. He did not suffer physical injury but was absent from work on stress leave for a period of approximately six to eight weeks following the incident. 22. On 6 November 2003 CSR delivered an order of gyprock and wallboard sheeting. The combined weights of the various materials delivered were as follows: · Gyprock 13mm 1350 x 4800mm 5508kg · Gyprock 13mm 1350 x 3000mm 1377.2kg · Gyprock 10mm 1350 x 3000mm 5880.6 · Wallboard 6mm 1350 x 2400mm 3017.28kg · Wallbaord 6mm 1350 x 3000mm 3143.20kg · Wallboard 6mm 1200 x 2400mm 3911.60kg · Gyprock 10mm 1200 x 3600mm 570.2kg 23. The working load limit of the crane while operating with its outriggers fully extended at a radius of 20 to 22 metres ranged between 2450kgs to 3200kgs. It is necessary to make allowance for the weight of the hooks and lifting equipment attached to the crane whilst making a lift. 24. The crane crew received instructions for the work they were to do at the site from Boris Miletic, leading hand builder's labourer employed by the defendant and Dennis Paleothodoros, site supervisor employed by the defendant. 25. On 6 November 2003 Boris Miletic had instructed the crane crew as to where to set up the crane and what jobs they were to undertake. Neither Boris Miletic nor Dennis Paleothodoros provided any further instruction to the crane crew. Mr Miletic advised that he left how the job was to be set up to the crane crew. The defendant provided no supervision to the crane crew on 6 November 2003. 26. No supervision had been provided to the employees involved in the operation of the crane on 6 November 2003. No such supervision was received by anyone at the site employed by either Cashbend or Anywhere. The crane crew did not have a dedicated supervisor at the site. The defendant provided no information or instructions to the crane crew beyond indicating sheeting was to be moved and where the sheeting was to be moved. 27. Anywhere advised they provided a Job Safety Analysis (JSA) to the defendant in accordance with the defendant's Site Occupational Health and Safety Management Plan. The defendant was unable to confirm whether this JSA had been inspected or approved. The JSA required that prior to a job being commenced a pre job site inspection and toolbox talk was to be performed. This was not undertaken on 6 November 2003. The defendant's Site Occupational and Health and Safety Management Plan, required them to review contactors JSA's and to monitor compliance with their Plan. 28. The crane operator, Ross Walsh was not informed that the load being lifted at the time the incident occurred had been changed from gyprock to wallboard sheeting. 29. Ross Walsh had completed a crane operator check sheet prior to commencing lifting. 30. Ross Walsh informed the inspector after the incident that there was an ongoing problem with the operation of the Automatic Moment Limiter ("AML") fitted to the crane in that the weight gauge provided fluctuating readings. Due to this problem he operated the crane with the AML overridden. The crane had a locked position switch, which would allow permanent override. The AML when in working order stops crane function at 100 percent safe working load. Given the AML was overridden there was no warning device in operating on the crane to advise the crane driver that the load being lifted was over the safe working load. 31. Ross Walsh had reported the defective operation of the AML to Tom Gabris, manager of Anywhere prior to the incident. The defect was also noted in the crane logbook on 2 November 2003. 32. (Deleted) 33. Subsequent to the incident on 6 November 2003, Inspector Richard Whitehead of the WorkCover Authority attended the site and made observations. Inspector Whitehead also took a number of photographs and completed a Factual Report of his inspection . . . 35. The defendant has no prior convictions under the Act. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) & (2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach on the other. Such an approach involves the sentencing court to engage in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act, to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace, is a relevant consideration. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

Consideration 12 In a consideration of penalty, the Court must examine the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . The defendant is the building company for Meriton Apartments Pty Ltd (Meriton), a significant company operating in the New South Wales building and construction industry. The defendant company meets two charges related to an unsafe system of work posing a risk to health and safety on its construction site to certain employees, and also certain other persons on that site. 13 The defendant company was contracted by Meriton to build an apartment development in Parramatta. As part of the contract, the defendant then subcontracted with Anywhere Tower Cranes Pty Ltd to perform crane lifting duties at the site. On the day of the incident, the crane driver, Mr Ross Walsh, had lifted onto the building a number of pallets of Gyprock sheeting slung by the dogman, Mr Alex Milenov. Mr Milenov then attached a third load to the crane. The load should have been recognised by Mr Milenov as Wallboard sheeting which was considerably heavier than Gyprock sheeting. No adjustment had been made to take into account the differential weight the crane was required to lift so during the lift the crane became unstable and toppled over. Investigations revealed the weight gauge of the crane (owned by the crane company) had been providing the driver with fluctuating readings and this had been reported to Anywhere Tower Cranes. On the day of the incident, the weight gauge switch, given that it was not operating accurately, was locked off by the crane driver. This meant there was no operating warning device to advise the crane driver that the load being lifted was over the crane's safe working load. Had such a warning device been activated, adjustments could have been made to the crane to allow it to safely lift the load of Wallboard. Instead, the crane toppled. The boom of the crane then struck the barrel of a concrete delivery truck and narrowly missed two other persons on site. The Wallboard sheeting landed on top of a wheelbarrow which an employee of the defendant company was preparing to remove.

14 On the day of the incident, the site manager employed by the defendant company had attended at the site in the early morning and gave some directions as to where the crane was to be set up and what jobs were to be undertaken. A Job Safety Analysis (JSA) Worksheet had been filed by the crane company and sent to the defendant company. It referred to a 'site supervisor' on site. However, the defendant company conceded it knew the crane company did not attend the worksite with a three person crew. 15 It is the good fortune of both the employees and the community generally that no one suffered physical injury in this breach of the Occupational Health and Safety Act. However, Mr Walsh, the employee waiting on the building site to receive the load, suffered a stress related condition.

16 The court examines a circumstance where a major building company, in accordance with modern industrial trends, subcontracts out specialised tasks which require a particular skill and expertise. In doing so it invited that subcontractor onto its building site. The major contractor at the building site did not rigorously perform its statutory obligation as supervisor to ensure a safe work site was achieved during the operations performed by the expert subcontractor. The subcontractor did not comply with its own safe working procedures which identified a supervisor would accompany the crane operators to the site. The defendant company failed therefore to ensure that its subcontractor strictly complied with adopted safe working procedures. It failed to supervise the operations of the subcontractor, and it failed to ensure all equipment on its building site was in good working order.

17 In the construction industry, an acknowledged dangerous industry, basic safe working procedures must be rigorously implemented. The Occupational Health and Safety Act 2000 requires from building companies, be they the major contractor or the subcontractor, a commitment to the implementation of well thought out safe working procedures to ensure the safety of all persons on or near building sites.

18 Further, there is an element of foreseeability to this offence. As a matter of commonsense the overloading of a crane, a "precision piece of machinery" will cause it to fall. The defendant company, although it accepted a system of work from the crane company that suggested the cranes would operate under a supervisor's guidance, did not pay for such a person on site, nor insist on one being in attendance. In the absence of such an expert coming with the crane operators, it was the obligation of the defendant company to supervise what was effectively a dangerous operation on its building site. Haylen J recently considered a similar circumstance and a corporate defendant's responsibility for the failure of subcontractors to ensure compliance with safe work practices in Robert William Regan v Anglo Coal (Kayuga Management) Pty Ltd [2007] NSWIRC 12. He enunciated the relevant test saying at [26]: . . . The thrust of the charge was not to require the defendant to become and expert in crane and lifting operations but required the defendant to ensure that employees of . . . were provided with or had maintained a safe system of work in respect of the conduct of the lifts and that they would be provided with or had maintained a proper system in relation to the assessment of risk associated with the conduct of lifts to be performed in the site. . . . While supervision is required I accept it could have been expertly provided by the crane company. The onus however was on the defendant company to ensure there was adequate supervision in the performance of a dangerous task. The same obligation rests on the defendant company to ensure all equipment brought onto its building site is in good working order.

19 A level of deterrence also must be factored into the consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, this principle was applied in the context of consideration of breaches under the Act where Hungerford J held (at 388): I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

These principles were cited by the Full Bench of the Court with approval in Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610, where it was said at [74]: . . . [The] 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 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, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . .

The defendant company continues to operate in the building and construction industry so there must be an element of both specific and general deterrence factored into these penalties. 20 In consideration of penalty, a number of subjective features to the offence have been placed before the Court. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp Ch'ng) (1999) 90 IR 464, the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 21 Since its inception in 2000, the defendant company has been the head contractor on approximately 22 sites across the Sydney metropolitan area and nine other sites in Queensland. It has approximately 115 employees on staff over the various sites. However, it subcontracts to various trades and on an average day, contracts with 80 or so trades and provides work for some 2000 to 3000 persons per day.

22 The defendant company has constructed in excess of 5000 commercial and residential strata units since September 2000. The company's procedures and practice requires the head builder on each of its sites to attend at head office and report to management on all matters to do with the particular site, including site safety issues. The safety manager for the defendant company had conducted an audit of OH&S compliance on sites and the audit indicated some sites were satisfactory and some were unsatisfactory. Those that were unsatisfactory were followed up. Allegedly operations undertaken on the site by Anywhere Tower Cranes had not been audited because it was only irregularly on the site. 23 On hearing of the incident, Mr Brighton, as the Safety Manager of the defendant company, immediately attended the site and reviewed site operations. He revealed the crane company had provided an OH&S Management Plan to the defendant. A Job Safety Analysis (JSA) was also provided but it was conceded there is no evidence it was perused by the defendant company. Further, the system required a site check list to be completed by the crane driver and while this did occur, it was not accurately completed. The check list noted that the equipment was in good working order. 24 Mr Brighton has recognised the loads which had been delivered to the building site from the CSR distribution centre did not have any identification of the weights of each bundle. He has tried to persuade CSR to include the weights of each load for all their customers, as weight identification would assist crane crews. One would hope that such a sensible suggestion has been adopted by the supplier.

25 While some of the pre-existing safe working documentation appears thorough, on analysis it is not. Anywhere Tower Cranes provided to the defendant company a safe working document (the JSA) suggesting a site foreman would accompany the crane driver and dogman. The defendant company concedes they accepted the crane company's quote for the task knowing there would be only two employees on site operating the crane.

26 The defendant company has since agreed to meet the cost to the subcontractor of a crane supervisor to accompany the crane driver and dogman to each of its building sites. This seems a practical resolution to the safety issues revealed by the incident. It is the view of the defendant company that such a crane supervisor is best employed by the crane company as it is the company which holds the necessary expertise. I accept the defendant company's general site foreman would not have the necessary expertise to supervise such a task. In future, any subcontract entered into by the defendant company with a crane company will allow the cost of the extra person to be employed to serve as site supervisor. I accept this endeavour will assist to ensure a safe work site during crane lifting operations on the defendant's work sites. However, the defendant company cannot waive its statutory obligation to ensure that any cranes operating on its site are in good operating condition and agreed job safety procedures are being rigorously implemented. 27 The industrial record of the defendant company was raised as an issue. The maximum penalty prescribed by the Legislature for each offence under s8(1) and s8(2) of the Act by a corporation at the time of the incident is $550,000 and if there are prior convictions, $825,000. It is common knowledge that Meriton has operated on construction sites across New South Wales for many years before the defendant company was incorporated in 2000. However, the prosecution does not submit there are any prior convictions related to the activities of Meriton that would be relevant to a consideration as to whether the defendant building company has prior convictions. 28 As the two charges are brought arising from the same incident, the principle of totality is applicable to the Court's consideration of penalty for these two offences. The High Court in Pearce v The Queen (1998) 194 CLR 610 guides the court as to sentencing in circumstances where the defendant is charged with more than one offence. The majority McHugh, Hayne and Callinan JJ said at [45]-[47]: 45. To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality ( Mill v The Queen (1988) 166 CLR 59). 46. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process. 47. Questions of cumulation and concurrence may well be affected by particular statutory rules (See Crimes Act , s444(2)and(3); Sentencing Act 1989 (NSW), s9; see also Sentencing Act 1991 (Vict), s16). If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. ( emphasis added ) 29 Kirby J in Postiglione v The Queen (1997) 189 CLR 295 enunciated the principle in the following way (at 340): The totality principle has a dual aspect as explained recently in the Supreme Court of Canada ( R v M (CA) (1996) 105 CCC (3d) 327 at 349). First, in the words of D A Thomas, Principles of Sentencing ( 2nd ed (1979) at 56 also cited with approval in Mill v The Queen (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 sentence is 'just and appropriate'. 30 As to the question of totality in R v Holder; R v Johnston [1983] 3 NSWLR 245, Street CJ described the principle in the following way at (260): The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. 31 McHugh J in Postiglione adopted the view expressed by Street J in Holder saying (at 308): The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ( R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ( Holder [1983] 3 NSWLR 245 at 260). 32 The principle is expressed in terms which address the cumulative effect of sentences/penalty. The "common element" analysis relied upon follows the words of McHugh, Hayne and Callinan JJ in Pearce at [40]: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. ( emphasis added ) 33 The Full Bench in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181, followed this reasoning at [37]: We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. 34 Therefore, adopting the above authorities in the application of the principle of totality, the court is to have regard to the overall criminality in determining the overall sentence/penalty. There are common elements in the nature of these breaches pleaded under s8(1) and s8(2) of the Act. The particulars relied upon are similar and one agreed statement of facts was relevant to the prosecution of both offences. The difference in the charges is the s8(1) charge pleads a risk to the safety on the building site to the defendant's employees and the s8(2) charge pleads a risk to the safety of other persons on its work site. 35 The issue of parity also arises. The court on appeal recently considered the issue of parity in Inspector Green v Big River Timbers Pty Limited; Inspector Green v Big River Timbers (Veneer) Pty Limited [2006] NSWIRComm 279 and commented at [16]-[17]: 16. In the present case, it would seem that while totality has no role to play (except to the extent that it should be applied to the two offences with which the second respondent is charged), parity must nevertheless be considered.

As Walton J, Vice-President held at [60] in Inspector Barry Childs v Kirk Group Holdings Pty Limited & Anor : [60] In the present matter, the factual circumstances giving rise to the charges against the Company and Mr Kirk are identical. In those circumstances, it is appropriate that I compare the respective sentences imposed on each defendant to ensure the principle of parity is not violated, making due allowance for relevant differences in their levels of culpability. The issue of parity was discussed recently in Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 where a Full Bench held (at [110] - [111]): Of fundamental importance to the administration of justice is a consideration of parity when determining sentence: Griffiths v The Queen (1997) at 326-327 ; Signato v The Queen (1998) 194 CLR 656 at 670; Capral Aluminium at [62] - [65]; Inspector Ankucic v McDonalds at 434; P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102. The principle of parity was described in the joint judgment of Dawson and Gaudron JJ in Postiglione v The Queen (at 301-302) as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in their being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. 36 Prosecutions have been brought relevantly against Anywhere Tower Cranes Pty Ltd, the crane supplier and operator, and against two individuals, the director and manager, under the Occupational Health and Safety Act 2000. Pleas of guilty were entered by each defendant. The court published its judgment and ordered penalty for those breaches of the Act (see Inspector Alan Jones v Anywhere Tower Cranes Pty Ltd & Ors [2007] NSWIRComm 44). Relevantly Marks J imposed a penalty of $100,000 on the corporate defendant and a penalty of $9000 upon each of the two individuals. He found it was established the crane operators performed a dangerous task in faulty machinery and there was a failure to implement the company's safe working procedures. In the court's regard to penalty, the defendant relies on the parity principle and contends the principle of 'equal justice' requires consideration be accorded to Marks J's determination. 37 In my consideration as to parity, I accept the defendant company's offences are not as serious as that of the crane company. The essence of these offences was the defendant company failed to supervise a dangerous task and to check on their subcontractor's equipment and procedures. However, it is also necessary to distinguish the judgment of Marks J entered against Anywhere Tower Cranes, and the two individuals. Only one charge arising from the incident was pleaded against the crane company under s8(1) of the Act. One charge was pleaded against the two individuals. This defendant faces two breaches of the Occupational Health and Safety Act 2000. In considering penalty, Marks J took into account the corporate defendant's early guilty plea, its pre-existing systems of safe work procedures, its co-operation with WorkCover and that it had not operated in the 'crane industry' since the incident. Marks J therefore gave significant weight to the subjective factors when determining the penalty for that offence.

38 I accept the defendant company co-operated with the WorkCover Authority in its investigation of the breaches as charged under s8(1) and s8(2) of the Occupational Health and Safety Act 2000. It is agreed there was a utilitarian value to the pleas (see R v Thomson; R v Houlton). A plea entered at the earliest possible time significantly reduces the court's valuable time. In the circumstances in which this plea was entered, on the day of the hearing, following agreement on the statement of facts, I allow a 15 percent discount of penalty on the plea.

39 Accordingly, in Matter No IRC5522 of 2005, I find the defendant guilty for a breach of s8(1) of the Occupational Health and Safety Act 2000. The defendant company is fined in the sum of $50,000.00. 40 In Matter No IRC5521 of 2005, I find the defendant guilty for a breach of s8(2) of the Occupational Health and Safety Act 2000. The defendant company is fined in the sum of $50,000.00. 41 In the application of the principle of totality and on assessment of the "overall criminality" of the defendant's breaches of the Occupational Health and Safety Act 2000, I find circumstances require the court to reduce the penalties imposed for each offence by $10,000 to give a cumulative sentence which reflects in penalty an appropriate relativity between the totality of the criminality and the totality of the penalties.

Orders 42 Accordingly, the Court makes the following orders: 1. In Matter No IRC5521 of 2005, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $40,000.00 with a moiety to WorkCover Authority of New South Wales.

In Matter No IRC5522 of 2005, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $40,000.00 with a moiety to WorkCover Authority of New South Wales.

There shall be only one order as to costs. As there has been no agreement between the parties as to the quantification of the costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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.

Sentencing Act 1989(NSW)

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Judgment (33 paragraphs)

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Cases Cited (16)