Inspector Carmody v Power

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J

Matter Number IRC 6978 of 2001 INSPECTOR MARTIN CARMODY v KEVIN PATRICK POWER Prosecution under s 50(1) of the Occupational Health and Safety Act 1983

1 The defendant has pleaded guilty to a breach of s 50(1) of the Occupational Health and Safety Act 1983 ("the Act"). An agreed statement of facts was tendered in the following terms: "1. At all material times the Prosecutor was an Inspector duly appointed and empowered by Section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in the within matter. 2 At all material times KEVIN PATRICK POWER (the Defendant) of 3-11 Aintree Close, Charlestown in the State of New South Wales was a director of Yonti Formwork Pty Limited (ACN 081 038 511) (formerly known as Tableforms Aust Pty Ltd) ( Yonti Formwork ). 3. At all material times, Willtara Constructions Pty Ltd ( Willtara ): 3.1 was the principal contractor and project manager at a construction site at 51-53 Bourke Road, Alexandria in the State of New South Wales ( the site ) 3.2 contracted Yonti Formwork to supply, erect and dismantle formwork at the site 3.3 contracted Ularay Pty Ltd (Ularay) to carry out concrete pouring at the site. 3.4 Employed Stephen Coffey as a Site Manager. 4 At all material times Yonti Formwork: 4.1 was a formwork contractor; 4.2 was contracted by Willtara to supply, erect and dismantle formwork at the site. 4.3 contracted with Burgess and Arnott Pty Ltd to provide structural engineering certification of formwork supplied and erected at the site. 4.4 employed Douglas Crane as Site Manager at the site. 5 At all material times Burgess & Arnott: 5.1 conducted an engineering consultancy. 5.2 sub-contracted to Grava Consulting the task of formwork inspection and structural engineering certification at the site. 5.3 employed Robert Grava (Grava) to carry out the duties of inspecting engineer, including the inspection and certification of formwork on construction sites. 6 On 28 October 1999 formwork collapsed whilst concrete was being poured. This area was identified as pour one, level one ( pour one, level one ). As a result of the accident the following workers suffered injuries: 6.1 Mr Graham Earnshaw, a 40 year old self employed contractor who sustained a cut to the right arm, left knee and bruising to the chest. 6.2 Mr Kalolo Kupu Matavesi, (Matavesi), a 47 year old employee of Ularay who sustained a cut to his right knee and ringing in his ear. 7 The formwork used on the site was described as the Multiform formwork system. The system incorporated a table form that comprised of four vertical frames approximately 5.5 metres high arranged to form rectangle tables of variable size. These were arranged along a grid of six rows running east - west at approximately 6 metre intervals. 8 On the western boundary of pour one, level one, the formwork was erected on top of an earth cutting approximately 1,200 mm deep and the outer most legs were placed approximately 600 mm from the edge of this earth cutting on unstable sand. This section of formwork supported a large perimeter beam which when placed with concrete required substantial founding at the base of the frames. 9 On the northern boundary footing had been cut into the excavated face to enable the formwork frames outer most legs to be founded at the reduced ground level on the base soil providing a more appropriate founding for the formwork erected along this boundary. 10 On 19 October 1999, 9 days before the accident, Grava, as inspecting engineer undertook an inspection of formwork assembly at pour one level one. At the time of the inspection the formwork assembly on the western boundary was incomplete. 11 On 19 October 1999, Grava issued a structural engineering's certificate stating that the formwork assembly conformed with AS1170 and AS3610 subject to correction of the listed defects in the engineer's report. This action breached Regulation 86 of the Construction Safety Regulations 1950 as the report was issued nine days before the concrete pour and failed to consider the whole formwork assembly which was yet to be completed. 12 There was no re-inspection undertaken by Grava, nor was any inspection requested by Willtara, Yonti Formwork or Grava Consulting. 13 There were prolonged periods of heavy rainfall experienced in the area of the site during the period between the formwork inspection on 19 October 1999 and the pouring of concrete on 28 October 1999 which effected the foundations of the formwork. 14 On 27 October 1999 Yonti, through its Site Manager Mr Crane, sent a memorandum to Stephen Coffey of Willtara advising of the potential collapse of the formwork due to the effects of the stormwater. Mr Crane also proposed to Mr Coffey that several columns be poured prior to undertaking the concrete pour. Willtara declined this sequence of work. 15 At approximately 6.00am concreting workers from Ularay ( the concreters ) arrived at the site to prepare pour one, level one. The prepared formwork for pour one, level one was approximately 5.5 metres above ground level and located on the north western sector of the site ( the formwork ). The foreman of Ularay, Matt Tomasic (Tomasic), held discussions with Stephen Coffey and Douglas Crane, and both persons advised him that the formwork was ready for the pouring of concrete. Tomasic then directed the pump operators to set up the pump lines while he commenced checking the desired levels for the finished concrete floor. 16 At approximately 8.10am the pouring of concrete commenced (the concrete pour). On completion of pouring approximately 20 cubic metres of concrete, Tomasic checked the pour levels against the desired levels which were found to be correct. The concreters then poured another 20 cubic metres and again Tomasic checked the levels. He then stopped the concrete pumps immediately after noticing that the formwork deck had dropped approximately 20 millimetres. Matavesi noted that further concrete was added to that which had been expected to be needed and this was poured as an attempt to correct the observed slump in levels. 17 Stephen Coffey confirmed that the formwork deck level had dropped 20 millimetres and entered into a discussion with Tomasic as to what measures were to be taken concerning the movement of the formwork deck. At approximately 8.20am a section of the formwork assembly along the western boundary beam started to collapse causing approximately 20 persons who were working in the immediate area to run away from the collapsing section of formwork ( the accident ). 18 On 28 October 1999 Senior Inspector Jim Moore and the Prosecutor attended the premises and observed as follows: 18.1 At the main entrance to the site from Bourke Road, Alexandria, the right side entrance gate there were two signs. The sign on the left read "Willtara Constructions, Builders Licence 56503C, A.C.N. - 050 335 987, 5 Talvera Road North Ryde 2113". Etc. A smaller sign to the right of the first sign read "No Entry" and displayed a no entry symbol". 18.2 On the site fence adjacent to the left main entrance gate to the site from Bourke Road, was a large sign, which read "Architects: Krikis Tayler Architects 9922 3680". 18.3 On entering the site, at the left of the main gate were amenities sheds and portable offices. Adjacent to the amenities were several stacks of table form modular soffit sections. 19 On 1 November 1999 Gary Truswell, Consultant Engineer of Gary Truswell & Associates Pty Limited Consulting Engineers produced a written report to Willtara which found as follows: 19.1 The weight of the wet concrete when poured triggered the collapse of the formwork. 19.2 That the extended legs of the formwork along the western boundary cutting were unstable due to the positioning of the formwork and the sand base of the formwork. It could be seen that the formwork installers had recognised this danger along the northern boundary as the footings had been cut into the excavated face to enable the formwork outer most legs to be founded at the reduced ground level on a soil foundation which was stable. 20 On 1 November 1999 Mark Bartel, Consultant Engineer of Network Geotechnics Pty Ltd produced a written geotechnical report for Willtara which found as follows: 20.1 The footings of the formwork along the western boundary were located on top of and about 0.5 metres from the edge of the existing 1.3 to 1.5 high cut batter. 20.2 The footings to the formwork should not have been founded adjacent to excavations unless adequate structural support had been provided for the excavation. 20.3 The footings should have been founded with medium dense to dense sands at about 0.3 metres below the existing bulk excavation level and proportioned for an allowable bearing pressure of 100Kpa. 20.4 The allowable bearing pressure of the footings of the formwork that collapsed at the site was approximately 70Kpa which was well below the required bearing pressure. 21 In June 2000 Dan Leavy, Senior Engineer of WorkCover Authority of New South Wales produced a written report after inspecting the site on 28 October 1999 which found as follows: 21.1 The formwork assembly collapsed because the legs of the formwork on the western boundary were placed in an unsuitable position on unstable foundations. The collapse was triggered once the formwork was loaded with the additional weight of the concrete, machinery and workers. 21.2 The design of the formwork assembly was unsuitable for the concrete pour. Testing reports from Low & Hooke (Australia) Pty Ltd, contracted to test the equipment in 1986, show that the formwork system had not been tested in the configuration used at the time of the accident. A singe test proposed on the formwork system in its taller configuration was aborted due to it failing in a strong gust of wind. 21.3 The structural engineering certification process of formwork at the site failed to comply with Construction Safety Regulations 1950, in particular regulation 86(16) which states that: "A person must not pour concrete into the formwork for a suspended slab or beam unless a qualified engineer: (a) has inspected the formwork to ensure it complies with Clause 5.3.4 of AS 3610 which relates to the adequacy of components of a formwork assembly; and (b) has certified in writing that the requirements of that clause have been satisfied." 21.4 Grava, the inspecting formwork engineer, failed to comply with clause 5.3.4 of AS 3610 - 1995 - Formwork for Concrete as required by the Construction Safety Regulation 1950. The certificate was issued by Grava and Grava Consulting on behalf of Burgess & Arnott on 19 October 1999, nine days before the formwork assembly was completed. The formwork that failed along the western boundary on the date of the accident had not been erected at the time this certificate was issued. As a result, Grava was unable to properly appraise the complete formwork assembly. 21.5 Grava Consulting and Grava failed to revisit the site once the formwork assembly had been completed to assess that the whole assembly, including checking whether the foundations were safe after heavy rain and whether listed defects in the report, had been rectified. 21.6 Grava Consulting and Grava should not have issued the certificate with the legs of the frames founded so close to the edge of the cutting along the western boundary which breached AS 3610 which states: "The formwork shall be founded on material that has adequate strength, stability and stiffness to comply with the formwork documentation." The formwork documentation in clause 4.7 of AS 3610 specified identifying such items as the foundation material, its safe bearing value and limitations on settlement and recommends referral to geotechnical reports for this purpose. 21.7 The inability of the soil adjacent to the cut face to support the formwork assembly was identified at the inspection of the site by Grava on 19 October 2001 but inadequate steps were taken by Willtara and Yonti Framework to correct the defects listed on the certificate pour to directing the concrete pour. 21.8 Surface water produced by heavy rain at the site prior to the collapse weakened the top soil on which the formwork was founded by increasing its water content and reducing its sheer strength and bearing capacity. 21.9 The inadequate supervision of the work on site by Willtara and Yonti Formwork contributed to the accident because Grava should not have been instructed to attend the site and certify the formwork while it was still incomplete. 21.10 Directions by Willtara and Yonti Formwork to go ahead with the concrete pour should not have proceeded until the entire formwork system had been assessed and certified as being in accordance with the relevant sections of AS 3610. 21.11 Willtara and Yonti Formwork failed to use the practice of cutting pockets in the soil to allow the frames of the formwork legs to be founded on firm level soil along the western boundary, as was used in the case of the northern boundary. 21.12 An appropriately qualified person of Willtara and Yonti Formwork should have been monitoring the effects of the concrete pour. 22 As a result of the Prosecutor's investigations and inspections, the following was found: 22.1 Tests were carried out on the multiform formwork system by Low & Hooke (Australia) Pty Ltd in 1996 but they were inadequate because tests were carried out at the shorter frame configuration. The test results were not applicable to the taller configuration used for the construction project at the site. 23 Since the accident Willtara and Yonti Formwork have provided documented safe work method statements to the WorkCover Authority. 24 It is alleged that the Defendant, KEVIN PATRICK POWER of 3-11 Aintree Close, Charlestown in the State of New South Wales, being a director of Yonti Formwork Pty Limited ( Yonti Formwork ) (ACN 081 038 511) (formerly known as Tableforms Australia Pty Ltd), contravened Section 50(1) of the Occupational Health & Safety Act 1983 on 28 October 1999, in that Yonti Formwork, an employer, breached Section 16(1) of the Occupational Health & Safety Act 1983 on 28 October 1999 at a site located at 51-53 Bourke Road, Alexandria in the State of New South Wales, in that it failed to ensure that person not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work, in particular Graham Earnshaw and Kalolo Matavesi. In particular, Yonti Formwork failed: 24.1 To conduct an adequate risk assessment of the hazards involved in carrying out a concrete pour at the site on 28 October 1999 ( the concrete pour ). 24.2 To adequately assess the load bearing capacity and structural soundness of the formwork prior to carrying out the concrete pour. 24.3 To ensure a safe system of work for persons not in its employment carrying out the concrete pour. 24.4 To ensure that the formwork used at the site in which the concrete pour took place (the formwork) complied with AS 3610 - 1995 Formwork for Concrete. 24.5 To ensure that the formwork was inspected and certified by an engineer in accordance with Regulation 86 of the Constructions Safety Regulations 1950 prior to the concrete pour. 24.6 To take adequate steps to correct the defects in the formwork after obtaining the engineer's report and becoming aware that the structure, design and foundations of the formwork were unsafe prior to the concrete pour. 24.7 To implement a safe system of work for the concrete pour. 24.8 To implement appropriate measure to ensure the formwork foundations were made safe after obtaining the engineer's report and before the concrete pour, after becoming aware of water saturation from heavy rains adversely affecting the stability of the formwork foundations. 24.9 To carry out adequate investigations and inspections prior to the concrete pour despite known concerns about safety of the formwork. 24.10 To carry out supervision or adequate supervision prior to and at the time of the concrete pour. 24.11 To ensure the formwork complied with the WorkCover Code of Practice with respect to the erection of formwork in a safe manner."

2 In addition to the agreed statement of facts there was tendered into evidence a factual investigation report of the prosecutor and photographs. The defendant gave evidence and relied on additional evidentiary material being a witness statement made by a Mr Douglas Crane to the prosecutor, a copy of a memorandum from Mr Crane to Mr Stephen Coffey of Willtara Constructions Pty Limited, a letter from Gary Truswell & Associates Pty Limited Consulting Engineers addressed to Willtara Constructions Pty Limited dated 1 November 1999 and two character references.

3 The statement given by Mr Crane to the prosecutor and the memorandum of Mr Crane to Stephen Coffey of Willtara Constructions Pty Limited amplifies some of the material contained in the agreed statement of facts. The memorandum of 27 October 1999, the day before the accident advised Mr Coffey that the storm water diversion had washed out the false work along the boundary at grid 8 and that the area was "a potential collapse because of this". He suggested that work in this area cease immediately and that the pump cease operation. Mr Crane indicated that it might be necessary for rectification work to be carried out on the formwork. After the pump ceased operation Mr Crane instructed employees of Yonti Formwork to repack the boards on which the formwork footings were positioned. He conceded that notwithstanding this action "the full extent of the washout …was not investigated thoroughly enough."

4 Mr Crane had also asked Mr Coffey on 27 October 1999 to pour the remaining columns along the western elevation to help "lock the deck in, it is an added safety precaution." This request was made orally. Mr Coffey is alleged to have told Mr Crane that it would cost too much in extra pump hire to bring a separate pump in on 27 October just to pour those columns.

5 At the start of the concrete pour on 20 October 1999 Mr Crane had requested that all of the remaining external columns on the construction site be poured first, presumably to increase the stability. However, he was informed later on that this had not occurred. The work of pouring the concrete was under the control of Willtara Constructions Pty Limited.

6 Mr Gary Truswell, consulting engineer in his report to Willtara Constructions Pty Limited dated 1 November 1999 had said that he attended the site on the day of the accident. It was his opinion that the weight of the wet concrete when pouring started "triggered the collapse of the formwork directly over the bank which in turn dragged the remainder of the bay in towards it." He then commented that "fortunately the concrete building columns had been poured some days earlier which probably prevented the collapse being more extensive. It is well known that sand is generally unstable at slopes greater than about 1 vertical to 2 horizontal. The props that supported the formwork on the western side were well within this unstable zone with the resultant unfortunate result."

7 In his oral evidence, Mr Power said that he had 27 years' experience working in formwork. He said that he was committed to occupational, health and safety and ensured that persons who worked for him and in his business had received training in occupational, health and safety matters. He had enhanced his attention to safety after the accident.

8 Mr Power said that the company Yonti Formwork, later known as Tableforms Australia Pty Limited had been wound up and that he was working as a foreman for another organisation engaged in the formwork industry. He was not involved in any management of that company. Mr Power said that he was divorced with no children and that his only asset consisted of a half share of a home in Queensland which was the subject of a mortgage. He estimated that the net value of his share was $105,000. He owed the Australian Taxation Office $40,000 and was presently in receipt of an income of about $50,000 per annum although that was earned when he was not working on a full-time basis.

9 A reference from Mr Stephen Davidson, accountant said that Mr Power's company had encountered financial difficulties since mid-1999 as a result of cash flow problems encountered in connection with the Bourke Road project. It was said that the head contractor Willtara Constructions Pty Limited went into liquidation. Mr Davidson assessed Mr Power as being a trustworthy and reliable person.

10 Mr Sinclair of Lunik Industrial Relations Services said that he had known the defendant for six years and that he had utilised his "practical knowledge and experience with formwork" to produce safe systems of work for companies that both of them have been associated with. He regarded the defendant as being "very safety conscious and experienced" in the formwork area.

11 It is first necessary to consider the objective seriousness of the breach. Because of the manner in which s50 of the Act is framed, in essence the object seriousness of the breach is to be measured by reference to the breach by Tableforms Australia Pty Limited (of which the defendant was a director) of s 16(1) of the Act.

12 Whilst it is clear that the ultimate cause of the accident was contributed to by a number of factors, there can be no doubt that Tableforms Australia Pty Limited was in breach of s 16(1) and that the breach was a serious one. Insufficient attention had been given to the nature of the ground where the legs of the formwork on the western boundary had been located. In addition, there was a failure to adequately investigate and assess the overall nature of the ground along the western boundary after the integrity of the ground had obviously been affected by both rainwater and stormwater discharge. Certainly, the alleged failure by Mr Grava, engineer, to carry out his inspection in a proper and appropriate manner and the alleged failure of the head contractor to respond appropriately to the request to pour the western columns first all contributed to the ultimate accident. Nevertheless, the positioning of the legs of the formwork was a vital matter. I conclude that the breach objectively viewed was a serious one.

13 There are, however, a number of mitigating factors which need to be taken into account. Mr Power has no prior convictions for a breach of the Act. He pleaded guilty at an early stage which entitles him a discount on the ultimate penalty, which I assess at 25%. It was conceded by the prosecution that the defendant co-operated fully with the prosecutor and ensured that those working within his organisation also did so. It is also accepted by the prosecution that the defendant has expressed contrition for what he has done.

14 Although it is necessary to take into account the general deterrent effect of a penalty, Mr T Moore of counsel who appeared for the defendant, submitted that because he was no longer in business on his own account and was no longer involved in the management of any organisation involved in the formworking industry there was less necessity to take into account the specific deterrent effect on this defendant.

15 Mr Moore submitted that the defendant should have the benefit of an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. Section 10 of that Act is in the following terms: "10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence."

16 There are a number of decisions which give guidance concerning the application of s 10 of that Act both generally and in particular to prosecutions under the Occupational Health and Safety Act. I acknowledge the assistance of Ms McManus, counsel for the prosecutor and Mr Tim Moore, counsel for the defendant in preparing joint submissions with respect to this aspect of these proceedings.

17 Section 10 was preceded by s 556A of the Crimes Act. That section was originally based on provisions contained in the Probation of Offenders Act 1907 (UK). There is similar legislation in State jurisdictions throughout Australia and also in legislation of the Commonwealth of Australia.

18 There can be no doubt that the section is intended to have general application and is intended to create a wide discretion. However, the discretion "is a judicial discretion, to be exercised consistently with the scheme and purpose of the section as a whole." (per Gleeson CJ (as his Honour then was) in the Court of Criminal Appeal in R v Ingrassia (1996) 41 NSWLR 447 at 449.)

19 A number of cases have considered the manner in which the discretion should be exercised having regard to the particular matters set out in s 10(3). In considering similar legislation in South Australia, Windeyer J in the High Court of Australia in Cobiac v Liddy (1969) 119 CLR 257 said, in connection with the exercise of the discretion by a magistrate:

"The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be 'of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged . . . it is expedient to exercise' the power. That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers 'having regard to' the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence. In the instant case the magistrate's decision, according to his notes, was that: ' . . . in view of the defendant's age, his previous good character (apart from his driving record) the circumstances of his aged sister being dependent on him - the provisions of s. 4 should and in the exercise of my discretion, will be applied'." (at 275-6)

20 More recently the construction of a provision of similar effect to that of s 10 was considered by the Court of Criminal Appeal of New South Wales in Commissioner of Taxation v Baffsky [2001] NSWCCA 332, reported at (2001) 164 FLR 375. Those proceedings were concerned in part with the application of s 19(B) of the Crimes Act 1914 (Cth) which for present purposes may be regarded as being in terms sufficiently similar to s 10. In the course of his judgment, Spigelman CJ discussed the proper approach to the application, in particular, of s 10(3). After discussing relevant authorities including the judgments of the members of the High Court of Australia in Cobiac v Liddy his Honour appears to have accepted that "one of the specified matters (in the equivalent of s 10(3)) must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account." (at FLR 382-3.) Simpson J and Einfeld A-J agreed with the judgment and reasons of the Chief Justice.

21 A decision of the New South Wales Court of Criminal Appeal in R v Paris [2001] NSWCCA 83 (14 March 2001) focused on the consideration required to be given to the factors under s 10(3). Simpson J delivering the substantive judgment of the Court said that "subs 3 requires the Court to have regard to the four factors listed. This is not intended to preclude the Court having regard to any other relevant factors but it does require express regard to those matters identified … The four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive." Ipp AJA (Wood CJ at CL agreeing) commented that s 10(3) "sets out what may be termed as criteria to be borne in mind in deciding whether or not to make an order referred to in subsection 1. While none of these criteria is conclusive, all are to be taken into account."

22 This tension in the approach to the application of s 10(3) arose again in the decision of the New South Wales Court of Criminal Appeal in R v Piccin (No 2) [2001] NSWCCA 323 (30 August 2001). At paragraph 22 James J (with whom Giles JA agreed) said: "Under subsection (3) of s10 a court is required to have regard to a number of factors in deciding whether to make an order of a kind referred to in subs (1). I accept that the factors in paragraph (a) of subs (3) would support the making of an order under subs (1). However, I do not consider that such an order could properly be made, when regard is had to the factor in paragraph (b), that the court is required to have regard to 'the trivial nature of the offence'. In my opinion, the present offence was not trivial in nature."

23 However, Hulme J said that "it is not a precondition of the exercise of power under s 10 … that the offence involved be trivial … ." His Honour, after considering the provisions of both ss556A of the Crimes Act and s10, as well as authority concluded: "I am unaware of any other statutory provision or other power applying to offences or offenders generally which enables a court to avoid recording a conviction when the facts prove establish the commission of an offence. Against this judicially recognised purpose and function of s 556A, one cannot conclude from what is obviously a 'plain English' rewriting of the section that a change to limit it to only trivial offences was intended. Indeed were one to regard the reference to 'the trivial nature of the offence' as limiting the section's application to only such offences, one would have to take the same approach to the terms of paragraph (c) and conclude that the section was not merely limited to trivial offences but trivial offences where there were also 'extenuating circumstances'.

Such an emasculation of an important provision, designed to mitigate 'the rigidity of inexorable law', is not to be inferred in the absence of legislative intent far more clearly demonstrated than in the change in terminology from s 556A to s 10." (at para 28 and 29)

24 I would conclude from the judgment of James J, as supported by Giles JA, that once it is determined that an offence is not trivial of its nature, then that is indicative that the discretion created by s 10 should not to be exercised.

25 This approach appears to be inconsistent with that adopted by Stein JA in the New South Wales Court of Criminal Appeal in R v Lord [2001] NSWCCA 533 (4 December 2001). In those particular proceedings Stein JA proceeded on the basis that the offence was not trivial. His Honour considered an appeal from the application of the judge at first instance of the provisions of s 10(3), who had found that there were extenuating circumstances. Stein JA said, at para 18: "In my opinion, it was an error for her Honour to find there were extenuating circumstances under s 10(3) surrounding the commission of the offence by the respondent. Her Honour did not approach s 10 with the required two step process. Nor did she identify the provision within s 10 to which she had regard. Further, in my opinion, the sentence did not reflect the objective seriousness of the offence or maintain a reasonable proportionality between the sentence and the circumstances of the offence. It appears that inadequate weight was given to the objective seriousness of the offence by reason of the offender's subjective features. I accept the Crown's submission that there was no punitive aspect to the sentence and that it contained no relevant personal or general deterrence."

26 Hidden J and Howie J in separate judgements agreed generally with the reasoning of Stein JA.

27 I conclude from these proceedings that s 10 may be applied even though the offence may not be trivial but that overall the application of s 10 must "reflect the objective seriousness of the offence" and must "maintain a reasonable proportionality between the sentence and the circumstances of the offence." In this Court, an approach has been taken at Full Bench level to the application of s 10 and the former s 556A to occupational, health and safety offences, which has created an additional qualification on the discretion conferred by these provisions. The matter was considered at some length in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700.

28 In the course of its judgment in those proceedings the Court said: "Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s 556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s 556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider'."(at 710)

29 The Court also commented that: "… in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." (at 710).

30 For completeness the observations of the Full Bench in Profab were adopted by a Full Bench of this Court in WorkCover Authority of New South Wales v Gundagai Shire Council (2002) NSWIRComm 243 (30 September 2002).

31 This approach was referred to without disapproval by Spigelman CJ in the New South Wales Court of Criminal Appeal in Thorneloe v Filipowski [2001] NSWCCA 213, (2001) 52 NSWLR 60. His Honour said: "In Hunter Water Board v State Rail Authority of New South Wales (No 2) (at 23), Stein J said: 'This Court has not infrequently stated that it will be a rare case when a dismissal under s556A is seen as appropriate to an environmental offence, especially a breach of the Clean Waters Act .' On appeal to this Court, Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said (at 726G) that there was no error in his Honour's approach to penalty. The formulation 'a rare case', or equivalent words, has been applied in the Land and Environment Court a number of times. (See e.g. Morrison v Peers (at 42; 548); Morrison v Kingston Maritime Corporation Inc (Land and Environment Court, Pearlman J, 26 February 1997, unreported); Clarke v Environment Protection Authority (1997) 98 LGERA 114 at 116; Filipowski v Terminals Pty Ltd (1999) 105 LGERA 166.) Similar issues have arisen under s 15 of the Occupational Health and Safety Act which I have set out above. In Schultz v Tamworth City Council (1995) 58 IR 221 at 229, Fisher J, CJ of Industrial Court, said: 'The use of s556A of the Crimes Act , which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed.' This formulation has frequently been used in the Industrial Relations Commission. See the joint judgment of Wright J (President), Walton J (Vice-President) and Hungerford J in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 708 [19], 709 [21], 710 [26]." (para 165 - 169, NSWLR at 74).

32 In Thorneloe, Hulme J agreed that it would be rare for s 556A to be applied in environmental offence cases but said that the nature of the offence together with "the perceived object of the relevant statutory provision" should be taken into account as one element to be considered in determining whether s 556A or s 10 ought to be applied. Howie J agreed with the reasons given by both Spigelman CJ and Hulme J.

33 I approach the application of s 10 on the basis, consistent with authority and in particular with the Full Bench decision in Profab, that I am required to consider the fact that the defendant has pleaded guilty to a statutory offence framed in absolute terms in the context of legislation which overall is designed to enhance the health, safety and welfare of persons at work.

34 I am unable to categorise the offence as trivial in nature, and in view of some of the authorities to which I have referred, this would also, of itself, be determinative of this matter. However, I expressly refrain from applying s 10(3)(b) in this way, because in the circumstances of these proceedings I am able to reach a conclusion about the application of s 10 without doing so.

35 Although the defendant is, on the evidence a person of good character who has not committed any prior offence under relevant occupational, health and safety legislation, there are not in my opinion any particular extenuating circumstances which would dictate that s10 should be applied, in particular having regard to the nature of the offence and the statutory matrix by which the offence is created. I have previously indicated that I regard the offence objectively as being serious by nature.

36 For all these reasons I decline to apply s 10 and it is necessary to fix an appropriate monetary penalty. The maximum penalty is the sum of $55,000. In all of the circumstances, I consider that the appropriate penalty is the sum of $6,000 to be reduced to $4,500 after applying a discount for an early plea of guilty. The prosecution has sought a moiety of the penalty which was not opposed.

37 The prosecution also sought an order for costs, the parties indicated that they were in discussion with respect to the quantum of costs. I propose to reserve costs and grant liberty to apply in the event that the parties are unable to reach agreement.

38 I make the following orders: 1. The defendant is found guilty of the offence charged in the summons and is convicted accordingly.

2. The defendant is fined the sum of $4,500 with a moiety to the WorkCover Authority of New South Wales.

3. Costs are reserved and liberty to apply is granted with respect to costs.

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.