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[2011] NSWIRComm 91
Industrial Relations Commission (NSW)
2011-02-15
Staff J
Original judgment source is linked above.
t) Carlos Acevedo (Second Defendant) Representation: Counsel Mr C Magee of counsel (Prosecutor) Mr M Luitingh of counsel (Defendants) Solicitors WorkCover Authority of New South Wales (Prosecutor) Michael Taylor Solicitor and Public Notary (Defendants) File Number(s): IRC 195 and 196 of 2010
Judgment 1Stratabuild Pty Ltd ("the corporate defendant") operates a painting business. 2On 19 March 2008, Mr Ivan Vega, an employee of the corporate defendant, was undertaking painting work at an apartment complex known as the Balmain Cove Complex, located at 3 Wulumay Close, Rozelle in the State of New South Wales ("the site"). Mr Vega fell from the top of a six metre long ladder, the top of which was not secured. Mr Vega was not using a harness, or any fall restraint equipment. Mr Vega suffered fatal injuries.
The charges 3The corporate defendant, in an application for order, was charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 (" OHS Act ") by failing to ensure that on 19 March 2008 at 3 Wulumay Close, Rozelle, the health, safety and welfare at work of all its employees, and in particular, Mr Vega. The particulars of the charge are as follows: The particulars of the risk are that: (a) The health and safety of employees of the defendant was put at risk of injury from falls whilst accessing work areas at heights and working at height at the Site; The particulars of the acts or omissions of the defendant in failing to eliminate the risk are that: (b) The defendant failed to provide and maintain a safe system of work in relation to accessing work areas at heights and working at height at the Site in that it failed to undertake measures as follows: (i) The provision of scaffolding, an elevated work platform or a harness and lanyard system to enable its employees to access work areas including the balcony of apartment number 22 at the Site; (ii) The completion of a risk assessment of the hazards associated with the use of a ladder to access work areas including balconies at heights in excess of 6 metres at the Site; (iii) The completion of a risk assessment of the hazards associated with gaining access to work areas and working from areas including balconies at heights in excess of 6 metres at the Site; (iv) The provision of a Safe Work Method Statement for tasks involving accessing work areas and working from heights in excess of 2 metres at the Site, that detailed the requirements: (a) for the use of scaffolding, elevated work platforms or harness and lanyard systems; (b) that portable ladders were not be used without a fall restraint systems such as a harness and lanyard systems; (c) that portable ladders not be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre; (d) that whilst ascending portable ladders the person must have both hands free to grip the ladders and persons should not carry paint pots, brushes, drop sheets, tools or other equipment in their hands whilst climbing portable ladders; (c) The defendant failed to provide information, instruction and training in relation to accessing work areas at heights and working at height at the Site in that it failed to undertake measures as follows: (i) provide Mr Vega with information in respect to the risks of falling associated with the use of ladders for accessing work areas and the performance of work at heights greater than 2 metres; (ii) provide Mr Vega with instruction that portable ladders were not to be used for accessing work areas and the performance of work at heights greater than 2 metres without a fall restraint system such as a harness and lanyard systems; (iii) provide Mr Vega with instruction that portable ladders were not to be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre; (iv) provide Mr Vega with instruction that whilst ascending portable ladders he must have both hands free to grip the ladders and he should not carry paint pots, brushes, drop sheets, tools or other equipment in his hands whilst climbing portable ladders; (v) provide Mr Vega with training in the use of scaffolding, elevated work platforms or harness and lanyard systems for accessing work areas and the performance of work at heights greater than 2 metres (vi) provide Mr Vega with training in the requirements of a Safe Work Method Statement for accessing or working at heights, or the need for and how to complete a JSA or to undertake a risk assessment; (d) The defendant failed to provide supervision to Mr Vega in relation to accessing work areas at heights and working at height at the Site in that it failed to undertake measures as follows: (i) to supervise Mr Vega in respect to the devising of the means which he intended to utilise to access the balcony of apartment number 22 at the Site; (ii) to supervise Mr Vega to ensure that he undertook a risk assessment or completed a Job Safety analysis prior to accessing the balcony of apartment number 22 at the Site; (iii) to supervise Mr Vega to ensure that he did not utilise a 6 metre long portable ladder to access the balcony of apartment number 22 at the Site; (iv) to supervise Mr Vega to ensure that he utilised scaffolding, an elevated work platform or a harness and lanyard system to access the balcony of apartment number 22 at the Site; As a result of the defendant's failures its employee Ivan Vega was placed at risk of injury. As a result of the defendant's failures its employee Ivan Vega suffered fatal injuries. 4Mr Carlos Acevedo ("the personal defendant") was charged by virtue of s 26(1) of the OHS Act of a breach of s 8(1) of the OHS Act in the same terms as the corporate defendant. The personal defendant is the sole director of the corporate defendant. The particulars relied upon were identical to those relied upon in respect of the corporate defendant, with the addition of a particular that the personal defendant was a director of the corporation. 5Each defendant pleaded guilty to the offences charged and the particulars in the applications for order. However, it is necessary to determine a factual dispute in respect of whether the corporate defendant was aware that Mr Vega was going to paint a second floor balcony using a ladder. I will deal with that later in this judgment. 6I am satisfied on the evidence, that the defendants are guilty of the offences as charged, and that it was appropriate for pleas of guilty to be entered. It follows therefore, that this judgment is concerned with the question of penalty.
Prosecutor's evidence 7Mr C Magee of counsel, who appeared for the prosecutor, tendered an agreed statement of facts. There remains some facts in dispute between the parties. These are identified in the statement of facts with the prosecutor's version of the facts identified by the letter "A" and the defendants' version of the facts identified by the letter "B". The agreed statement of facts provided: ... The parties 2. At all material times Stratabuild Pty Ltd ("Stratabuild") was a corporation operating as a painting company. 3. At all material times Carlos Acevedo was the sole director and owner of Stratabuild. Mr Acevedo was employed by Stratabuild. Background 4. Stratabuild was registered on 7 July 2006. It primarily undertakes painting and minor building repair work in the building and construction industry. 5. Stratabuild was contracted by Paint & Technical Services Pty Ltd on behalf of the owners of Strata Plan 60294, to carry out re-tiling of balconies, minor repair work and painting of the outside of buildings, including balconies and courtyards called "The Landings', the "Tors" and the "Tors Annex", which were part of an apartment complex known as the "Balmain Cove Complex" at 3 Wulumay Close, Rozelle ("Site"). 6. The contract to perform the work at the Site commenced on approximately 1 October 2007 and was due for completion on 1 March 2008. The contract price was the sum of $531,930.00 plus prime cost items. The work to be undertaken under the contract included painting the balconies and pergolas on the balconies. Stratabuild was the principal contractor on the Site. (Vol 2, Tab 7.12 - Contract for Building Repairs and Painting with Stratbuild dated 1 October 2007). 7. Stratabuild supplied all materials and equipment for the work to be performed under the contract at the Site. This included paints, scaffolding, ladders and other equipment. 8. Stratabuild also had available for use approximately 5 safety harnesses and lanyards. (Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A122) . 9. Stratabuild also utilised a swing stage for areas that could not be reached using ladders or scaffolding. (Vol 1, Tab 6.3 - Witness statement of Christopher Vega dated January 2011 at [14]) . 10. Mr Acevedo managed the business of Stratabuild. He also performed painting and other related tasks for Stratabuild, including the erection scaffolding and supervision of workers. 11. Mr Acevedo played a significant role in the development of the systems of work that were utilised by Stratabuild both generally and at the Site. 12. Mr Acevedo held a Certificate of Competency in scaffolding. He undertook scaffolding work on the Site. He also provided training to other employees in erecting and dismantling scaffold at the Site. 13. On the day of the Incident, Mr Acevedo was performing work at the Site. 14. On the day of the Incident, Mr Acevedo's role in relation to the work being performed at the Site included directing other workers of Stratabuild as to the tasks that they should undertake. (Vol 1, Tab 6.3 - Witness statement of Gustavo Asciutto dated 11 February 2011 at [14]; (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008 at Q&A39) . 15. Mr Acevedo was on Site at the time of the Incident and was performing work in relation to the erection of scaffolding on the north elevation of the building called the Landings, near to where Mr Vega was performing work. 16. Mr Acevedo held a Certificate of Competency in scaffolding. He undertook scaffolding work on the Site. He also provided training to other employees in erecting and dismantling scaffold at the Site. 17. Mr Acevedo played a significant role in the development of the systems of work that were utilised by Stratabuild both generally and at the Site. 18. On 19 March 2008, Stratabuild had employed or engaged approximately seven people to perform work on the painting and repair of the building. 19. As at 19 March 2008, Ivan Vega was employed by Stratabuild as a painter. 20. Ivan Vega commenced work for Stratabuild at the Site in or about October 2007 (Vol 2, Tab 7.10 - Records of Hours worked; Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A62) . 21. Ivan Vega had worked for Stratabuild since approximately March 2007. This had included performing work at other sites. 21-B. Ivan Vega held the OHS General Induction for Construction Work in NSW - OHS Construction Induction Training Certificate (formerly Green Card). Ivan Vega held Card Number W044317607 . 22. In February 2006, Ivan Vega obtained qualifications to operate a Scissor Lift. 22B. The assessment included questions about fall arrest harnesses as did the demonstration he had to complete to get his card. 23. In February 2008, while contracted by Everest Contracting Pty Ltd, Ivan Vega completed the Rail Industry Safety Induction. 23B. In February 2008, while Stratabuild Pty Ltd was subcontracted by Everest Contracting Pty Ltd, Ivan Vega completed the Rail Industry Safety Induction Course with an accredited course provider at the request and expense of Stratabuild Pty Ltd. He was deemed competent in Rail Safety Induction as he displayed an acceptable level of understanding and awareness of Rail Safety Induction procedures to comply with the requirements of RailCorp and the NSW Rail Regulator. There were modules on Risk Management, Safe Work Practices and Key Safety Categories which included Working at Heights which specifically made reference to working safely with ladders, including the 1:4 rule for ladders and the need to maintain three points of contact with the ladder (Defendant's Documents Additional Documents II Rail Safety Course (b) Railcorp Working Safely Handbook issue date 12/12/2007 at pages 31- 33). 24. On 9 February 2008, while contracted by Everest Contracting Pty Ltd, Ivan Vega signed a SWMS/JSA relating to painting work being conducted a Coledale Train Station and a Daily Hazard Assessment. 25. On 10 February 2008, while contracted by Everest Contracting Pty Ltd, Ivan Vega signed a SWMS/JSA relating to painting work being conducted a Como Train Station and two Daily Hazard Assessments on different days. 26. Victor Galvez was employed or engaged as Stratabuild's Site Supervisor/Foreman. He had been engaged by Stratabuild for approximately 4 months at the date of the Incident. Prior to this date he had been engaged from April 2007 by another company of which Mr Acevedo was a director. Mr Galvez reported to Mr Acevedo and was supervised by Mr Acevedo. Mr Galvez had been a supervisor for Stratabuild for 2 months at the date of the Incident. 27. Mr Galvez holds the following qualifications: (a) Certificate of Proficiency - Painting & Decorating, apprenticeship completed 29 April 2002; (b) Certificate III in Painting and Decorating , December 2000; (c) Certificate IV in Building Studies, Residential, July 2005; (d) Contractor Licence, Painting and Decorating, 159502C; (e) First Aid - Apply First Aid, issued 3 June 2009 (f) First Aid - Perform CPR, issued 18 June 2010 (g) Rail Industry Safety Induction Certificate, issued 22 February 2008; (h) Occupational Health and Safety General Induction for Construction Work in NSW, OHS Construction Induction Training Certificate, issued 10 October 2005. 28. Gustavo Asciutto was employed or engaged as a painter by Stratabuild. He had been engaged by Stratabuild for approximately 2 weeks at the date of the Incident. 29. Roberto Navarro was employed or engaged as a painter and labourer by Stratabuild. He had been engaged by Stratabuild for approximately 15 months at the date of the Incident. 30. Mario Torres was employed as a painter by Stratabuild. He had been engaged by Stratabuild on or about 22 February 2008, and had worked at the Site for approximately 1 month at the date of the Incident. 31. Christopher Vega (son of the deceased) was employed as a labourer by Stratabuild in or about October 2007. He had been employed by Stratabuild for approximately 4 months at the date of the Incident. 32. Stratabuild paid Mr Vega, Mr Galvez, Mr Asciutto and others who performed work at the Site (Vol 2, Tab 7.11). Stratabuild paid superannuation contributions for Mr Vega, Mr Galvez, Mr Asciutto and others at the site. 33. For about 1 month prior to 19 March 2008, Stratabuild workers were performing work on the building known as the Landings. In the week before 19 March 2008, this work involved work on the northern elevation or 'waterfront' side of the apartments. The Landings was primarily a 4 storey building with a small component being 3 storeys in height. (Vol 1, Tab 7.1 - Photo 3 of Photographs taken by Vince Castro on 19 March 2008). 34. This work generally included the painting of the exterior surfaces of the front of the apartments, including the courtyards and balconies of the buildings. System of work in relation to accessing work areas at heights and working at height 35B. Stratabuild's system for the works to be performed by its workers at the site included inter alia an initial informal site induction. This site induction involved looking around the Site for hazards and discussing matters such as working at heights, scaffolding, toilets and places to keep equipment. (Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A56 - 58). 35. After the initial induction, consultation in relation to safety primarily involved Mr Acevedo talking to workers about safety during lunch breaks or when he saw someone doing something unsafe. Mr Galvez, in his role of Supervisor, would also raise safety concerns that he saw with workers. The Incident 36A. On 19 March 2008, Mr Vega and Mr Asciutto had been directed by Mr Acevedo to continue to undertake painting work on the exterior surfaces of the apartments and the courtyards on the ground level and first floor of the northern elevation or 'waterfront' side of the Landings. (Police statement between Gustavo Alejandro Asciutto and Constable Chris Fraser dated 19 March 2008 at [4]). 36 B. On 19 March 2008, Mr Vega commenced work at approximately 7 am. On the day of the Incident, Mr Vega and Mr Asciutto were directed by Mr Acevedo to continue performing the work that they had been performing the day before. This involved painting the outside surfaces of the ground floor apartments on the front side of the building called 'The Landings'. ( Police statement between Gustavo Alejandro Asciutto and Constable Chris Fraser dated 19 March 2008 at [4]). 36. On 19 March 2008, Mr Acevedo and other workers were moving scaffolding components to the northern elevation of the Landings to commence erecting scaffold at the front of the Landings. (Vol 1, Tab 7.1 - Photo 4 of Photographs taken by Vince Castro on 19 March 2008). This scaffolding was being constructed so that the painters and tilers could commence work. The Tiler were to undertake waterproofing and tiling of balconies including on apartment No. 15, which was on the fourth floor of the Landings. The scaffolding was also to be used to paint the upper levels of the northern elevation of the Landings, once the tilers had completed their work. (Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A45; Witness statement of Victor Galvez dated 1 June 2011; Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A117; Vol 1, Vol 1, Tab 6.9 - Witness statement of Thomas Winston Muter dated 13 January 2011 at [22] -[25]; Witness statement of Mario Torres dated 31 January 2011 at [40] - [41]). 37. At approximately 7.10 am, Mr Vega and Mr Asciutto commenced to undertake painting the outside surfaces of the ground floor apartments on the front side of the building called 'The Landings'. 37-B . Stratabuild had an arrangement with the Owners Corporation to obtain access to balconies when needed. The point of contact on site was the Caretaker, Tom. Galvez was walking towards Tom to make his way to third floor and on the way and saw Ivan and Gustavo painting one of the ground floor units. He noticed that the colour was incorrect. At that stage they appear to have completed one unit and were walking to the next unit. There is no clear vision between the courtyards because they are obscured by hedges and walls. Galvez noticed the incorrect colour by looking at the upper section of the ground floor. 38. At approximately 7.40 am, Mr Galvez came to the area where Mr Vega and Mr Asciutto, were undertaking painting work. Mr Galvez noted that they were utilising the wrong colour paint to undertake the work. They were using 'Summer Straw' when they should have been using 'Grand Canyon'. Mr Galvez informed Mr Vega and Mr Asciutto that the colour they were using was for the higher balconies. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A36; Police statement of Victor Galvez dated 19 March 2008 at [6]; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [26]). 39. Mr Galvez directed that Mr Vega and Mr Asciutto pack up the colour that they were using and to commence to paint the building with the correct colour. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A36; Police statement of Victor Galvez dated 19 March 2008 at [6]; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [26]). 40-A. Ivan Vega responded to Mr Galvez that it would take him and Mr Asciutto half an hour to clean the brushes and rollers and get the paint to re-paint the area, and that they had already wasted half an hour. Ivan Vega proposed that he and Mr Asciutto continue to use that colour and paint some of the balconies of the apartments that required that colour. Mr Asciutto agreed that that was a good idea. ( Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [27]). The other part of the building that Mr Vega proposed that they commence painting was on the waterfront northern aspect of the Landings, but involved the balconies on the second floor of the Landing. Mr Vega' proposal meant that he and Mr Asciutto did not need to clean the brushes and rollers and get the new paint and they could remain the area where they were and finish using the colour paint that they had started to paint with. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A39-40; Police statement of Victor Galvez dated 19 March 2008 at [6]; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [27]-[30]). A further discussion then occurred between Mr Galvez, Ivan Vega and Mr Asciutto as to the merits of this proposal. Mr Galvez agreed to this proposal. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A39-40; Police statement of Victor Galvez dated 19 March 2008 at [6]). 40-B. Mr Galvez had the following conversation with Ivan in Spanish: VG : "You dumb ass. Can't you see that that's the wrong colour - you're using Summer Straw when it should be Grand Canyon. Go and put the paint and tools away and come back with the right colour" Ivan: "I don't want to walk all the way to the site shed and clean the tools can't we use this colour on the other balconies?" Me: "No. We have to first finish the ground floor balconies and fix your fuck up, after that when the scaffolding is erected we will paint the upper balconies." The ground floor area where Vega was working was prepared and primed. The second floor and above had no preparation or primer applied at this time. For the second floor and above to be painted the area would first have to be prepared. Preparation involves water blasting of surfaces, scraping, sanding, rendering or filling of surfaces. Then the ceiling would have to be painted first. They could not start painting the walls when the ceilings had not been painted yet. This was common practise. For these reasons I did not and could not tell Ivan and Gus that they were allowed to paint above the ground floor with the finish paint. (Galvez statement June 2011 paragraph 28.) 41. Subsequently, Mr Galvez left the area where Mr Ascuitto and Mr Vega had been painting and went to locate the caretaker of the Landings, Thomas Muter, to assist moving furniture from the balcony of apartment No. 15, which was on the fourth floor of the Landings. This apartment was due to have its tiles replaced on the balcony. 42. Subsequently, Mr Vega and Mr Asciutto commenced preparations to paint the second-floor balcony of apartment number 22. This balcony was two floors directly above the courtyard of apartment number 16. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A39-40; Police statement of Victor Galvez dated 19 March 2008 at [6]; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [26]). 43. Mr Vega and Mr Asciutto determined that they would use a ladder in order to gain access to the balcony of apartment number 22. ( Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [30] -[33]; Vol 1, Tab 7.1 - Photo's 13, 14 of Photographs taken by Vince Castro on 19 March 2008) 43-B. But did not advise anyone that they intended to do so. 44. Mr Vega and Mr Asciutto obtained an aluminium extension ladder which was owned by Stratabuild (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A69-72; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [32]) . 45. The ladder was an 'OLDFIELDS, Tradesman 120 kg load rating' extension ladder, which was approximately 3650 mm in a folded position and 6 metres long in its extended position (Vol 1, Tab 5 - Factual Inspection Report signed by Inspector Vince Castro dated 26 March 2008 at [6] & [7]; Vol 1, Tab 7.1 - Photo's 8, 9, 10, 11 of Photographs taken by Vince Castro on 19 March 2008) . 46. Mr Vega and Mr Asciutto intended to conduct work by painting from inside of the balcony. (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A41 and 101-104; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [29]) 47. The second-floor balcony had a concrete/brick rendered beam and wall topped with a metal balustrade approximately 600 mm high. (Vol 1, Tab 5 - Factual Inspection Report signed by Inspector Vince Castro dated 26 March 2008 at [12]; Vol 1, 7.1.1 -Sketches and measurements undertaken by Inspector Castro on 19 March 2008; Vol 1, Tab 7.1 - Photo's 8, 12, 13, 14 of Photographs taken by Vince Castro on 19 March 2008). 48. he height of the top of the metal balustrade of the second-floor balcony was in excess of 6 metres from the terracotta tile floor of the courtyard of apartment number 16. (Vol 1, Tab 5 - Factual Inspection Report signed by Inspector Vince Castro dated 26 March 2008 at [12]; Vol 1, Tab 7.1 - Photo 17 of Photographs taken by Vince Castro on 19 March 2008 . 53-A. Mr Galvez did not give any instruction or direction as to how access could be gained to the balcony apartment or to asses the risk of getting onto the balcony. 53-B. Galvez did not have an opportunity to give Vega an instruction as to how he should access the balcony apartment or asses the risk because he did not know that Vega intended to access the Balcony. 54. Neither Mr Vega or Mr Asciutto undertook a formal documented risk assessment in relation to the specific task of utilising a ladder to access the balcony of apartment number 22. 55. Mr Vega set the ladder up inside the courtyard of apartment number 16. The courtyard dimensions were approximately 5 m x 2 m square of uncovered area. This uncovered area was formed by a metal gate with a brick rendered pillar to each side of the gate. The pillars were connected to walls approximately 1.8 m long by 1 m high. The floor was a terracotta/concrete floor. (Vol 1, Tab 5 - Factual Inspection Report signed by Inspector Vince Castro dated 26 March 2008 at [13]; Vol 1, Tab 7.1 - Photo's 18- 25 of Photographs taken by Vince Castro on 19 March 2008) 56. The ladder was set up to the right of the gate and pillar (looking at the apartment from the outside), with the base of the latter close to the inside of the connecting wall (Vol 1, Tab 6.11 - Witness statement of Necole Gawne dated 11 January 2011 at [16] ; Vol 1, Tab 7.1 - Photo's 31, 32 of Photographs taken by Vince Castro on 26 March 2008) . 57. The top of the ladder was placed against the outside of the rendered brick/concrete wall of the second-floor balcony (Vol 1, Tab 6.7 - Witness statement of Mario Torres dated 22 April 2008, Q&A18; Vol 1, Tab 7.1 - Photo's 26 -28 of Photographs taken by Vince Castro on 26 March 2008) . 58. Due to the height of the second-floor balcony with the balustrade, the length of the ladder was not sufficient for it to reach above the top of the balustrade. (Vol 1, Tab 7.1 - Photo's 26 -28 of Photographs taken by Vince Castro on 26 March 2008) . 59. As a result the top of the ladder did not extend above the level of the balustrade by a distance of no less than 1 metre, so as to allow Mr Vega to access the balcony without having to climb from the ladder over the balustrade and on to the balcony. (Vol 1, Tab 7.1 - Photo's 26 -28 of Photographs taken by Vince Castro on 26 March 2008) . 60. The ladder used was not placed in compliance with the requirements of section 2.6 - Part 5: Selection, safe use and care of "Portable ladders", in AS/NZS 1892.5-2000. This required that when a ladder is used to gain access to a working platform or roof, the top of the ladder should extend above the level of the working platform or roof by distance of no less than 1 metre. (Vol 2, Tab 7.15 p. 7 - Australian/New Zealand Standard "Portable ladders Part 5: Selection, safe use and care") 61. Mr Vega then commenced to climb the ladder. 62. Whilst climbing the ladder Mr Vega had a painter's drop sheet in his right hand and had a pot which had paint and a brush in it in his left hand. Mr Vega used his right hand (which also had the drop sheet in it) to help him climb. (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [5]; Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [38]; Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A83) 63. After Mr Vega had climbed about 10 steps, Mr Asciutto, stood against the ladder to support it. Mr Asciutto, stood with his two feet against the bottom rungs of the ladder and placed his hands on either side of the ladder and leaned against the ladder to stop it from falling back or becoming unsteady. (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [5]) 64. Mr Vega climbed to near the top of the ladder where it met the outside of the rendered brick/concrete wall of the second-floor balcony. (Vol 1, Tab 6.1 - P olice statement of Roberto Navarro dated 19 March 2008 at [7] ; Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6];). 65. As Mr Vega got close to the top of the ladder, Mr Asciutto noticed that the ladder started to move around and become unsteady. When the ladder started to move around Mr Asciutto looked up and saw Mr Vega begin to fall backwards. Mr Vega fell from the top of the ladder. (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]; Vol 1, Tab 6.1 - P olice statement of Roberto Navarro dated 19 March 2008 at [8]). 66. Mr Asciutto stated that he did not hear Mr Vega say anything before or whilst he was falling. Mr Asciutto did not observe what caused Mr Vega to fall from the ladder. (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]) 67. Mr Ascuitto stated that he observed that Mr Vega was falling backwards towards the right-hand side of the ladder. When he saw Mr Vega falling Mr Asciutto moved to where he thought he was going to land (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]) . 68. Mr Vega was falling about 1 to 2 metres away from where the ladder was. Mr Asciutto put both his arms out to try and catch Mr Vega before he hit the ground (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]) . 69. Mr Asciutto stated that Mr Vega fell into his arms, but he was not able to stop him falling completely. The back of Mr Vega's head hit the top of the rendered brick pillar in the courtyard of apartment number 16 (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]) . 70. After hitting his head, Mr Vega landed on the terracotta tile floor of the courtyard approximately 1 metre inside from the wall (Vol 1, Tab 6.6 - Police statement of Gustavo Alejandro Asciutto dated 19 March 2008 at [6]) . 71. Mr Vega was bleeding from the back of his head, ears and mouth. He was lapsing in and out of consciousness. 72. A number of persons working for Stratabuild then commenced to give first aid to Mr Vega. Mr Acevedo performed mouth to mouth resuscitation and chest compression on Mr Vega whilst awaiting for the emergency services to arrive. 73. Subsequently, the NSW Ambulance Service attended and commenced giving Mr Vega first aid including cardiopulmonary resuscitation. 74. NSW Ambulance Service's initial assessment was that Mr Vega had suffered a fractured skull, bleeding on the brain and several fractured ribs. 75. Mr Vega was transported by Ambulance to the Royal Prince Alfred Hospital, Camperdown where he was admitted at 0845 hours on 19 March 2008. 76. On the initial examination on admission, the attending medical practitioner, noted evidence of closed century was bleeding from the right year in blood from nose. A CT scan of the brain demonstrated right frontal haemorrhage and left frontal contusion. There was also evidence of diffuse cerebral oedema and evidence of raised cranial pressure. 77. Mr Vega was taken to theatre to undergo an emergency decompressive craniotomy. 78. Whilst undergoing surgery Mr Vega suffered a hypovolemic shock/arrest. This was contributed to by cerebral herniation and out of hospital cardiac arrest. 79. Mr Vega was pronounced dead at approximately 11:30 am on 19 March 2008. (Vol 2, Tab 7.3 -NSW Police Report of Death to Coroner form undated; Department of Health NSW Report of Death Associated with Anaesthesia/Sedation dated 19 March 2008; Royal Prince Alfred Hospital Report of the Death of a Patient to the Coroner dated 19 March 2008). Stratabuild's Systems of work at the Site 80. At or prior to the date of the incident, Stratabuild did not provide to its workers including Ivan Vega a documented formal Safe Work Method Statement specific to the work to be undertaken at the Site. (Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A127 & 137; Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Vol 1, Tab 6.3; Witness statement of Christopher Vega dated 22 April 2008 - Q&A88 & 93; Vol 1, 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [9]; Vol 1, Tab 6.7 - Witness statement of Mario Torres dated 22 April 2008, Q&A21; Witness statement of Mario Torres dated 31 January 2011 at [11]) . 82-B. At or prior to the date of the incident all site specific management and training discussions took place at the worksite in Spanish. No written site specific safety management plan was provided to Mr Vega or the other workers. 81. Stratabuild's system for the works to be performed by its workers at the site included an initial informal site induction. 82. This informal site induction involved the Stratabuild workers walking around the Site and being shown the location of the amenities as well as an informal assessment of the risks involved in the work to be performed on the different facades of the different buildings. (Vol 1, Tab 6.1 - Witness statement of Roberto Navarro dated 18 April 2008, Q&A56 - 58; Witness statement of Victor Galvez dated 1June 2011 at [7]). 83. Stratabuild did not have a formal Site induction document for the inductions that were undertaken for the Site. 84. The fact that site inductions were conducted or who attended was not recorded in a document by Stratabuild. 85-B. The workforce was however small comprising 7 persons 86-A. However, Gustavo Asciutto and Mario Torres state that they did not undergo a formal s ite specific induction when they commenced on Site. (Vol 1, 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [7]; Vol 1, Tab 6.7 - Witness statement of Mario Torres dated 31 January 2011 at [9]-[10]) 86-B. As each building and each faade was different each faade required its own assessment and painting plan. ( Witness statement of Victor Galvez dated 1June 2011 at [7]). Prior to work commencing on each faade, a site meeting would be held to discuss the work to be done and the way it was proposed that the faade was to be painted. ( Witness statement of Victor Galvez dated 1June 2011 at [7]). These discussions included who was to perform the work and whether scaffolding, swing stages or other methods would be used to access work areas and undertake work at heights in excess of 2 metres at the Site. ( Witness statement of Victor Galvez dated 1June 2011 at [20]). These site meetings would occur in the morning before work commenced or during lunch breaks. 85. However, these assessments were not formalised or documented prior to or at the time of the Incident. 87-B. Mr Acevedo would also discuss safety when he saw someone something in an inappropriate and unsafe way safety instruction took place on site before, during and after work doing something unsafe. Mr Galvez, in his role of Supervisor, would also raise any safety concerns that he had with workers. 87. Stratabuild did not have in place at the Site a formal document that dealt with hazard identification, assessment and control. 88. Stratabuild did not have available for use a pro forma document for workers to utilise to assess any hazards or risks in respect to the work they were doing. 89. Prior to the Incident, Stratabuild had not completed a formal documented risk assessment of the hazards associated with the use of ladders to access work areas including balconies at heights in excess of 2 metres at the Site. 90. Prior to or at the time of the Incident, Stratabuild had not completed a formal documented risk assessment of the hazards associated with gaining access to work areas and working from areas including balconies at heights in excess of 2 metres at the Site; 91. At or prior to the date of the Incident, Stratabuild did not have any documented system that detailed the requirements and circumstances for the use of portable ladders when accessing work areas and working from heights in excess of 2 metres at the Site. 92. On occasions portable ladders were used by Stratabuild to access and paint second floor apartments of the buildings at the Site. Fall arrest systems such as harnesses and lanyards were provided for use in these circumstances. ( Witness statement of Victor Galvez dated 1June 2011 at [20]). 93-A. However, on occasions portable ladders were used by Stratabuild workers to access and paint balconies of the buildings at the Site without using a fall arrest system. ( Witness statement of Gustavo Asciutto dated 11 February 2011 at [18]; Witness statement of Mario Torres dated 31 January 2011 at [17] - [24]). 93-B. However, on occasions portable ladders were used by Stratabuild workers to access and paint balconies of the buildings at the Site below 2 meters, without using a fall arrest system. (Witness statement of Gustavo Asciutto dated 11 February 2011 at [18]; Witness statement of Mario Torres dated 31 January 2011 at [17] - [24]). 94-A. At or prior to the date of the Incident, Stratabuild did not have a site specific formal documented system that advised its workers that (a) portable ladders were not be used without a fall restraint systems such as a harness and lanyard systems portable ladders not be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre; (b) whilst ascending portable ladders the person must have both hands free to grip the ladders; (c) whilst climbing portable ladders persons should not carry paint pots, brushes, drop sheets, tools or other equipment in their hands; 94-B. At or prior to the date of the Incident, Stratabuild did have a formal documented system that advised its workers that: (a) portable ladders were not be used without a fall restraint systems such as a harness and lanyard systems (Defendant's Documents Additional Documents II Rail Safety Course (b) Railcorp Working Safely Handbook issue date 12/12/2007 at page 31) (b) three points of contact with the ladder must always be maintained (Defendant's Documents Additional Documents II Rail Safety Course (b) Railcorp Working Safely Handbook issue date 12/12/2007 at page 33) (c) whilst climbing portable ladders persons should not carry paint pots, brushes, drop sheets, tools or other equipment in their hands, a tool belt / bag is be be used to carry any tools (Defendant's Documents Additional Documents II Rail Safety Course (b) Railcorp Working Safely Handbook issue date 12/12/2007 at page 33) (d) the 1:4 rule for ladders must be followed (Defendant's Documents Additional Documents II Rail Safety Course (b) Railcorp Working Safely Handbook issue date 12/12/2007 at pages 32). Details of systems of work after the Incident 94. After the Incident Stratabuild engaged the services of an OHS consultant, Sarkis Elias. 95. Mr Elias carried out a detailed investigation of the Site and buildings and documented a Site Safety Plan for implementation by Stratabuild ( (Vol 3, Tab 7.18.1 p.7 - Stratabuild Site Safety Policy - Project Name: 3 Wulumay Close, Balmain Cove, Task: Painting Works dated 1 April 2008) . 96. The new Site Management Plan was signed off by Carlos Acevedo on 1 April 2008 (Vol 3, Tab 7.18.1 - Stratabuild Site Safety Policy - Project Name: 3 Wulumay Close, Balmain Cove, Task: Painting Works dated 1 April 2008) . 97. The new Site Management Plan addressed issues including 'Hazard Identification and Risk Assessment', 'Consultation' and 'Working at Heights' (p.37) which included control safety measures such as the use and erection of scaffolding around the buildings. 98. Stratabuild's employees working on the Site were formally inducted on 28 March 2008. (Vol. 3, Tab 7.18.2 Induction Register). 99. A Safe work Method Statement for the Painting and Maintenance works at the Site was implemented on 1 April 2008. (Vol 3, Tab 7.18.3 -SWMS - Maintenance & Painting Works to 3 Wulumay Close, Balmain Cove completed by Carlos Acevedo, Manager dated 01 April 2008). 100. Stratabuild employees were inducted into the safe work method statements on 1 April 2008 and were given copies of the safe work method statements (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A117) . 101. Stratabuild also implemented a Site Safety Inspection Checklist performed risk assessments and undertook a weekly risk register. (Vol 3, Tab 7.18.4 -Site Safety Inspection Checklist (5 pages), Daily Hazard Assessment form revised 02 July 2006 (2 pages), Hazard Control Form for Stratabuild Pty Ltd (2 pages) and Hazardous Substance Register). 102. An Induction Register was also introduced which included details of the employee's qualifications and any medical conditions they had (Vol 3, Tab 7.18.2 Induction Register; Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A117) . 103. Stratabuild also issued a directive that workers were not to use any two-stage ladders at all on the Site. Further, a directive was issued that workers were not permitted to go above two metres on any ladder (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A117: Vol 1, Tab 6.6 - Witness statement of Gustavo Alejandro Asciutto dated 11 February 2011 at [38]) . They were also directed that they were not allowed to gain access to balconies using ladders or to use the ladders to undertake painting work. (Vol 1, Tab 6.7 - Witness statement of Mario Torres dated 22 April 2008, Q&A26) . 104. Stratabuild also introduced a separate site Office with a lunch room, which included details of emergency contacts and had management systems posted on the wall, and as well as containing copies of safety management plans and safe work method statements (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A117) . 105. Stratabuild also introduced more frequent toolbox meetings and improved communication between workers, for supervisors and the director (Vol 1, Tab 6.2 - Witness statement of Victor Galvez dated 21 April 2008, Q&A117; Vol 3 Tab 7.18.10 -Toolbox Meetings Minutes (Weekly Meeting) . 106. Stratabuild documented rules that its workers were not to answer mobile phones while working on ladders or scaffolding. 107. Stratabuild documented the mandatory use of personal protective equipment including gloves and safety boots. 8The prosecutor also tendered what Mr Magee described as "the prosecutor's tender bundle". It contained the following material:
Evidence of Darren Kelly 31Mr Darren Kelly stated that he was not currently a member of the NSW Police Force and was working at Pacific Dunes Golf Course, although he intended to return to the NSW Police Force in the near future. 32He recalled attending the incident on 19 March 2008 at the site. He did not have an independent recollection of taking a statement from Mr Galvez. He said his practice was to use his notebook for taking statements of minor incidents, when he was not at the Police Station. His usual practice, if taking a statement at the Balmain Police Station, was to type it straight onto a computer. He did not have a practice of taking longhand written statements. His general practice was, as a witness gave his explanation, he typed it out. He said he tried to steer witnesses in the right direction to ensure that the statement was in chronological order and his general practice was that after each paragraph he would stop, turn the computer screen to the witness, if they were not facing the computer, and ask "are you happy with that paragraph?" He said generally all statements were taken the same way. It is the way, he said, that police officers are taught to take statements. 33Mr Kelly was provided with a copy of his duty book and acknowledged that there was no record in the pages provided to him of a statement taken from Mr Galvez. His duty book recorded that at 9.30 am on 19 March 2008, he took a statement from Mr Galvez. 34During cross-examination, Mr Kelly agreed that there were no entries in his notebook for 19 March 2008. The entries ended on 18 March 2008. Taken to paragraph 6 of the statement provided by Mr Galvez, Mr Kelly's evidence was that the sentences that were in brackets were an interpretation of a conversation between himself and Mr Galvez. Although Mr Kelly could not specifically remember taking the statement from Mr Galvez, his evidence was that he would not have approached the taking of the statement in the way suggested by Mr Galvez. 35In answer to a question from the Bench, Mr Kelly's evidence was that in taking a statement, if a person quoted another person, his normal practice would be recorded as "I said", "he said" to reflect what they were saying in the conversation.
Evidence of Gustavo Alejandro Asciutto 36Mr Asciutto provided a statement at the Balmain Police Station on 19 March 2008. He was 18 years of age at the time of the incident and employed as a painter by the corporate defendant. He was working with Mr Vega on the day of the incident. He held the ladder whilst Mr Vega climbed it and subsequently stood with his two feet against the bottom rung with his hands on either side of the ladder to stop it from falling back or becoming unsteady. 37Mr Asciutto was interviewed by Inspector Castro on 21 May 2008 and provided a statement, the contents of which were consistent with the agreed statement of facts. 38On 11 February 2011, he provided a further statement to the WorkCover Authority of New South Wales. He stated that he was not given a site specific induction by the corporate defendant when he commenced work at the site, nor was he taken around the site, nor were any potential hazards at the site identified to him. In respect to the factual issues in dispute, his written evidence was as follows: 26. On 19 March 2008, about half an hour after we had started painting, Victor Galvez approached Ivan Vega and I and said: VG: "That's not the right colour! You are using the wrong colour paint. That colour paint is for the higher balconies. You will need to wipe that colour back, clean you brushes and rollers and go back and do it with the right colour." 27. I then spoke to Ivan Vega about what we should do. Ivan Vega said: "I (sic) will take us half an hour to clean the brushes and rollers and get the paint to re paint this area, we have already wasted half an hour. Why don't we continue to use this colour and paint some of the balconies further down that need this colour?" I said: "That's a good idea." 39Mr Magee took Mr Asciutto to paragraphs 26 and 27 and he gave the following evidence: Q. Sir, at para 26 of your witness statement, you refer to a conversation that occurred about half an hour after you started painting on 19 March 2008? A. Yes. Q. See that sir? A. Yes. Q. Sir, at para 27 indicated that you then spoke to Mr Vega, you set out the conversation there sir do you recall any further conversation occurring after that discussion that you set out in paras 26 and 27 with Mr Vega and Mr Galvez? A. No not that I remember. Q. Do you recall at any stage after para 27 Mr Galvez saying the words this is Mr Galvez speaking "we have to finish the ground floor balcony and your fuck up after that when the scaffolding is erected we will paint the upper balcony", do you have any recollection of Mr Galvez saying that? A. No. Q. Do you recall on the day of the 19 March Mr Vega had placed a ladder against a balcony and Mr Asciutto (sic) climbed up that ladder to the balcony? A. Yes. Q. Do you recollect sir whether that balcony needed any preparation such as water blasting of surfaces, scraping, sanding or rendering prior to you and Mr Vega being able to commence work on that? A. No. Q. Sir, to the best of your knowledge it was I am sorry it was your intention to assist Mr Vega in painting that balcony? A. Yes. 40During cross-examination, Mr Luitingh, after taking Mr Asciutto to paragraphs 26 and 27, asked him whether Mr Galvez had used more colourful language, including swear words to which Mr Asciutto responded "Not that I remember, no." 41Mr Asciutto denied that Mr Vega made the proposal to paint the balconies without Mr Galvez knowing. He agreed that Mr Vega climbing the ladder with a pot of paint in one hand and a drop sheet underneath his other arm, was not a safe means of climbing the ladder and that it was an obviously dangerous way to climb the ladder. 42Mr Asciutto also denied that scaffolding was going to be put on the facade in order to paint the entire facade. His evidence was that the scaffolding was not going to be put to the balconies. The scaffolding was for the tilers and renderers and the painting was generally carried out with ladders. He subsequently conceded that scaffolding was used by the painters to get to the upper floors, but not where the accident occurred. 43Mr Asciutto was taken to paragraph 29 of his statement of 11 February 2011. This paragraph read: 29. The colour paint we were using was the correct colour for the balconies on the higher level apartments of that building. So Ivan Vega and I decided to continue using those rollers and that colour paint to paint the inside of the upstairs balconies of that building a couple of units down from where we were located. 44He was taken to the second sentence and he agreed that "Ivan Vega and I decided to continue using the rollers" and that colour of paint to paint the upstairs balconies of the building. 45In re-examination, Mr Asciutto's evidence was that he had no recollection of Mr Galvez telling he or Mr Vega that they could not proceed to paint the upper balconies.
Evidence of Mario Antonio Torres Flores 46Mr Torres gave evidence with the assistance of a Spanish interpreter. Mr Torres is a painter by trade and was working at the site on the day of the incident. He said that on the day that he commenced work at the site, he was not given any documents by anybody representing the corporate defendant, nor any induction, or safe work method statements. Mr Torres stated that if a ladder was needed for use at the site, one person would hold the ladder at the bottom, the other person would go up carrying a rope which would be tied at the top to secure the ladder to the balcony and the other end of the rope would be sent down to the ground to be used to bring up equipment such as paint buckets, brushes and any other equipment that was required. Asked if any other equipment was used instead of ladders, Mr Torres said that an electric hangar was used on occasions. It was a piece of equipment that was attached to the ceiling of the building like a swing. It enabled a person to paint from inside the "hangar or box." 47During cross-examination, Mr Torres was informed that Mr Galvez had given evidence that when employees used the ladders, they used harness and lanyard systems to protect themselves from falling. Mr Torres' evidence was that he did not see them use such equpment.
The defendants' evidence 48Mr Luitingh tendered the following documents: (i) statement of Victor Galvez dated 1 June 2011, together with annexures to which I have already referred; (ii) a letter from the Elevating Work Platform Association of Australia dated 15 July 2010 to Angelina Farina, Operations Manager for the corporate defendant confirming that the Association had provided yellow cards to Luis Acevedo, Ivan Vega and Exiquel Chammorro. Attached to the letter was an Application for Training and Assessment and Trained Operator Assessment Document, together with a document headed "Questions - Verbal / Discussion"; (iii) letter from Southern Cross Rail Training Pty Ltd to Everest Contracting Pty Ltd dated 4 February 2008 advising that Southern Cross Rail Training had completed courses in Rail Industry Safety Induction conducted at Chullora for Roberto Navarro, Ivan Vega and Chris Vega. Annexed to this letter was the Railcorp Working Safely Handbook; (iv) Index to Vol 3 of the prosecutions brief which included the corporate defendant's Commencement Plan for Work at the Site, Site Safety Policy, Induction Register, Safe Work Method Statement for the Site; Site Safety Inspection Checklist; Emergency Management Plan; Insurance documents; Appendices & forms including Site Safety Plan; Accident/Incident Investigation Report; First Aid Treatment Details and various other appendices dealing with, for example, Lifting Gear Register, Daily Hazard Assessment; Hazardous Substance Register; Risk Register; Toolbox Meetings Minutes; WorkCover documents including Prevention of Falls, Leaning Ladders and Stepladders, Safe Working at Heights Guide 2006; Hazard Profile - Aluminium Mobile Scaffolding and a Guide for Property Owners and Manager.
Principles 49The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act . Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t 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' ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'
Consideration 50In accordance with the principles set out above, the primary consideration in sentencing requires a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences as set out in the agreed statement of facts and the evidence. In this matter, I proceeded to sentencing cognizant that the entering of the pleas of guilty by each defendant amounted to a confession of guilt and an admission to all the elements and particulars of the offences to which the pleas were offered: Woods v The Queen [2008] NSWCCA 8; (2008) 184 A Crim R 108 at [367] per Howie J (Spigelman CJ and Latham J agreeing). Furthermore, the conduct which the defendants have admitted by their pleas demonstrate a failure to have in place the layers of safety systems required by the OHS Act to ensure its employees' safety. 51It is appropriate to also record, in light of the defendants' submissions that the approach of the prosecutor reflected "an overzealous prosecution and perhaps even a failure to comply with prosecutorial duties" that I am unable to find any basis for such a submission. The conduct of the prosecutor was consistent with the principles found in cases such as Regina v Puddick (1865) 4 F&F 497; Whitehorn v The Queen (1983) 152 CLR 657; Ratten v The Queen (1974) 131 CLR 510; Mario Anthony Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 and MRW v The Queen [1999] NSWCA 452; (1999) 113 A Crim R 308. 52It is convenient that I first resolve the factual dispute in respect of whether Mr Galvez approved Mr Vega and Mr Asciutto carrying out the work on the second floor balcony. The factual dispute is highlighted, particularly at paragraphs [40], [43] and [53] of the statement of agreed facts. Crucial to the resolution of this issue is the conversation between Mr Vega, Mr Galvez and Mr Asciutto. 53Mr Galvez made three statements, the first to Constable Kelly on the date of the incident, the second to Inspector Castro on 21 April 2008, and the third to the defendant's barrister and solicitor on 1 June 2011. In the first two statements, Mr Galvez did not demur from the proposal by Mr Vega and Mr Asciutto to paint the second floor balcony. It is only when he makes his statement on 1 June 2011 that his evidence is that he told Mr Vega and Mr Asciutto not to paint the balconies and before first finishing the ground floor balconies, after which the scaffolding would be erected to enable them to paint the upper balconies. 54Mr Galvez' evidence was that when he gave his statement to Constable Kelly, the incident was fresh in his mind. He read through that statement when it was printed and signed it, being evidence of the possible penalties for giving false evidence. Importantly, there is an acknowledgement in that statement that there was a conversation whereby Mr Galvez raised with Mr Vega that he was painting the wrong colour. There is no dispute that Mr Vega proposed that they remain in the same area and use the same paint on other levels of the building that required that colour paint. Again, there does not appear to be a dispute that this colour paint could only be used on the second and third levels of the building. Mr Galvez was aware of that requirement, which of course required the use of a ladder. Mr Galvez says "I agreed with them and went with Tom [the caretaker]." 55Notwithstanding Mr Galvez' evidence of how the statement was taken, the concept that he agreed with the proposal could only have been conveyed by Mr Galvez to Constable Kelly. There was no evidence that Constable Kelly had any prior knowledge of the incident, or had discussed the matter with other witnesses and therefore had a pre-understanding of the issues. 56Mr Galvez' version in his statement to Mr Kelly is confirmed by the statement he provided to Inspector Castro on 21 April 2008, a little over one month after the incident. He was taken to the specific paragraph in his police statement (paragraph 6). He adopts the statement as correct. Once again, similar to his statement to Constable Kelly, Mr Galvez was given an opportunity to add any further comments to the statement or correct it. Mr Galvez was asked by Inspector Castro "What were the instructions given to Ivan from you?" After giving a brief explanation, Mr Galvez said "They told me instead of getting that colour to paint one of the units that had the colour that they had and I said ok." 57Although somewhat ineloquently put, during oral evidence, Mr Galvez accepted that the effect of what Mr Vega said was that he was intending to convey that he and Mr Asciutto were going to use the paint at another level, that being, the second floor level. 58Mr Galvez clearly had two opportunities to provide a further explanation or details in respect of the discussion between himself and Mr Vega and Mr Asciutto, including at the conclusion of the statement he gave to Inspector Castro. It is not until some three years later that Mr Galvez provides a statement in critically different terms which is directly inconsistent with the two versions that he had given, one contemporaneously and the second within a month of the incident. 59During cross-examination, Mr Luitingh invited Mr Galvez to give his current recollection of what he had said to Mr Galvez. I have earlier set out his evidence in this respect. In giving a fourth version, he commenced by stating that he said "You're fucking idiots". His 1 June 2011 version commenced with Mr Galvez saying to Mr Vega "You dum ass." In his oral version, he made no mention of saying "Fix your fuck up" and critically did not make reference to painting the upper balconies after the scaffolding was erected. 60Mr Asciutto's statement to the Police and to WorkCover is broadly consistent with the first two versions given by Mr Galvez. Mr Asciutto's evidence was that he did not recall Mr Galvez swearing at them during the critical part of the conversation. However, Mr Asciutto specifically denied that Mr Galvez was there when Mr Vega made the comment about "Let's continue with the work." Mr Asciutto appears to be mistaken about this because Mr Galvez himself said he was there and heard that part of the conversation. More importantly, when Mr Magee put to Mr Asciutto, Mr Galvez' version contained in his statement of 1 June 2011, Mr Asciutto denied that Mr Galvez said "No, we have to first finish the ground floor balconies and fix your fuck up." 61Furthermore, he denied that Mr Galvez told them that they could not proceed in the way that they had outlined in their earlier statements. If Mr Galvez, as supervisor, had specifically told Mr Asciutto and Mr Vega not to carry out the work on the balconies, it is reasonable to assume that this was something that would have been recalled by Mr Asciutto, particularly as it would have had some significance in light of the evidence that Mr Galvez himself initially agreed that such work would be carried out. This is also consistent with Mr Galvez saying "Ok" and walking away and Mr Asciutto's failure to recall any further conversation with Mr Galvez in respect of finishing the ground floor balconies and waiting for the scaffolding to be erected. 62Mr Asciutto also denied that there was a need to do any preparation work before painting the balconies. Furthermore, the evidence in relation to the painting of the balconies is clear. The building from level 2 upwards required the colour paint that Mr Vega and Mr Asciutto were using at the time. 63It is implausible that in a statement given on the day of the incident and another, a little over a month later, that Mr Galvez made no reference to the conversation set out at paragraph 28 of his statement of 1 June 2011. I prefer the evidence of Mr Asciutto to that of Mr Galvez in respect of this issue. Mr Galvez' evidence was that not a day goes past that he does not see Mr Vega lying on the ground looking up at him. Clearly the fall and the fatality has had a significant emotional effect on Mr Galvez, such that it is understandable that he has now convinced himself that he said "No" to Mr Vega and Mr Asciutto's proposal to paint the balconies on the second floor and that his conduct therefore had no role to play in the incident. 64It was the consequence of him saying "Ok" or agreeing to the proposal that ultimately led to the incident occurring. I therefore do not propose to place reliance upon the disputed facts as set out in Mr Galvez' statement dated 1 June 2011. It follows that I accept the versions of the statement of facts contained in paragraph 40-A, 43-A and 53-A and reject those contained at paragraph 40-B, 43-B and 53-B. 65Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offences, it is relevant to set out the important matters. 66The evidence clearly indicates that Mr Vega utilised a ladder which was six metres long to climb up to the second floor balcony of an apartment block. The height of the top metal balustrade of the second floor balcony was in excess of six metres from the floor of the courtyard of the apartment where the ladder was placed. Due to the height of the second floor balcony with the balustrade, the length of the ladder was not sufficient for it to reach above the top of the balustrade and it rested on the outside of the rendered concrete wall of the balcony. As the length of the ladder did not extend above the level of the balustrade by a distance of no less than one metre, Mr Vega was unable to access the balcony without having to climb from the ladder over the balustrade and onto the balcony. He was not wearing a safety harness or lanyard. 67Whilst climbing the ladder, Mr Vega had a painter's drop sheet held between his right arm and his body and a pot which had paint and a brush in it in his left hand. In my view, the risk of a fall was obvious. 68The evidence further indicates that: (i) there was a failure to complete a risk assessment of the hazards associated with the use of a ladder to access work areas, including balconies at heights in excess of six metres; (ii) the corporate defendant did not have in place at the site any document that dealt with hazard identification, assessment and control; (iii) the system that the corporate defendant used for risk assessment was that each building and each facade was different and each facade required its own assessment and painting plan; (iv) prior to work commencing on each facade, a site meeting would be held to discuss the work to be done and the way it was proposed that the facade would be painted. These discussions included who was to perform the work and whether scaffolding, swing stages, or other methods would be used to access work areas and undertake work at heights in excess of two metres at the site. However, these assessments were not formalised or documented prior to or at the time of the incident; (v) the corporate defendant did not provide a safe work method statement for tasks involving accessing work areas and working from heights in excess of two metres at the site. A safe work method statement should have detailed the following requirements: (a) for the use of scaffolding, elevated work platforms or harness and lanyard systems; (b) that portable ladders were not to be used without fall restraint systems, such as a harness and lanyard system; (c) that portable ladders were not to be used where the top of the ladder did not extend above the level of the working platform, balustrade, or roof by a distance of not less than one metre; (d) that whilst ascending portable ladders, the person must have both hands free to grip the ladder and persons should not carry paint pots, brushes, drop sheets, tools, or other equipment in their hands whilst climbing portable ladders. (vi) although the corporate defendant had in place site inductions and how the work was to be performed, such systems were informal and not documented. Equipment such as scaffolding, swing stages and harnesses and lanyards were available for use and were utilised at the site. However, the lack of a safe work method statement that clearly indicated the circumstances in which portable ladders would be used and when they could not be used, meant that there remained a potential for employees of the corporate defendant to undertake tasks in an unsafe manner; (vii) there was a failure on the part of the corporate defendant to provide information, instruction and training in relation to accessing work areas at heights and working at height at the site. Mr Vega should have been provided with information in relation to the risks of falling associated with the use of ladders for accessing work areas and the performance of work at heights greater than two metres. 69Once again, although the corporate defendant conducted discussions from time to time about the work to be performed, this approach was deficient in that it failed to provide specific information in respect to the risks of falling associated with the use of ladders. I accept both the evidence of Mr Torres and Mr Asciutto in this regard. Mr Vega should have been provided with instructions that portable ladders were not to be used for accessing work areas and the performance of work at heights greater than two metres without a fall restraint system, such as a harness and lanyard system. This is particularly so where the portable ladder was not to be used where the ladder did not extend above the level of the working platform, balustrade, or roof by a distance of not less than one metre. Furthermore, the corporate defendant failed to provide Mr Vega with instruction and training that whilst descending portable ladders, he must have both hands free to grip the ladder and he should not carry paint pots, brushes, drop sheets, tools, or other equipment in his hands while climbing portable ladders. 70I find that the corporate defendant failed to provide Mr Vega with training in the use of scaffolding, elevated work platforms or harness and lanyard systems for accessing work areas and the performance of work at heights greater than two metres. Although there is evidence that in February 2006 Mr Vega obtained qualifications to operate a scissor lift, there was no evidence that the corporate defendant provided task specific training at the site in the use of scaffolding or harness and lanyard systems for accessing work areas and the performance of work at heights greater than two metres. 71Although there is evidence that in February 2008, while contracted by Everest Contracting, a company unrelated to the defendants, Mr Vega completed the Rail Industry Safety Induction and signed a safe work method statement relating to painting work being conducted at Coledale Railway Station and Como Railway Station, the safe work method statements relate to a very different work site. These documents have little specific application to the circumstances of the painting of multi-level apartment buildings. 72In my view, the signing of such a document does not absolve the defendants of their obligations to provide proper training to Mr Vega, particularly in respect of working at heights. The personal defendant was also required to sign the same respective SWMS'/JSAs as Mr Vega. It was the responsibility of the corporate defendant to have a document specific for the work to be undertaken at the site. 73The corporate defendant failed to provide adequate supervision to Mr Vega in relation to accessing work areas at heights and working at height at the site. After a brief discussion with Mr Galvez, the corporate defendant did not provide any or any adequate supervision to Mr Vega or Mr Asciutto in respect to the means by which they intended to utilise access to the balcony, nor did the corporate defendant supervise Mr Vega to ensure that he undertook a risk assessment, or completed a job safety analysis prior to accessing the balcony of the apartment. The evidence discloses that Mr Vega was left without direct supervision or assistance, with the result that he devised his own method for accessing the balcony and acted accordingly. This was patently unsafe and exposed him to a risk to his safety. 74Clearly the absence of any safety measures and systems of work as identified above, had a causal connection with the risk of a fall from height, which manifested in the incident causing the death of Mr Vega. The risk of a fall in such circumstances was clearly foreseeable. The risk of injury to persons working at heights is generally well-known, and should have been foreseeable to a company operating in the building industry. 75Indeed, the fact that the corporate defendant was preparing to utilise scaffolding to undertake work at heights on the buildings at the site illustrates that it was aware of the risk and the need to put in place safe methods of work to avoid the risk. 76The simple remedial steps taken after the incident further highlight that the risk was easily avoidable. The measures include the preparation of a site management plan, the erection and use of more scaffolding around the buildings and a directive that workers were not to use two stage ladders and not to work above two metres on any ladder. After the incident, the corporate defendant engaged the services of an OHS consultant, Starkis Elias, who carried out a detailed investigation of the site and documented a site-safety plan for implementation. The plan addressed issues including "hazard identification and risk assessment", "consultation" and "working at heights" which included control safety measures such as the use and erection of scaffolding around the buildings. Employees were inducted into the safe work method statements on 1 April 2008 and provided with copies of them. The corporate defendant also implemented a site-safety inspection checklist, performed risk assessments and undertook a weekly risk register. An induction register was also introduced which included details of the employees qualifications and any medical conditions they had. Employees were directed that they were not allowed to gain access to balconies using ladders, or to use the ladders to undertake painting work. More regular toolbox meetings were also introduced. 77It was common ground that the corporate defendant had some systems of work in place and provided some instruction and training to its workforce including Mr Vega. However, it was clearly deficient, as the evidence set out above discloses. 78It is of little relevance to an assessment of the objective seriousness of the offence that Mr Vega unilaterally adopted a procedure that was patently unsafe. This was in circumstances where the defendant conceded that in relation to this particular site, there was no documented safety system. The obligation upon the defendants is to ensure the safety of its employees, which extends not just to the careful and observant, but to the hasty, careless, inadvertent, inattentive and even foolish: see WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 and the extensive summary of the principles undertaken by Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [181] - [194]. Had Mr Vega been provided with a well formulated, documented and properly implemented system of safety, there is every likelihood that he would have followed it and the risk would have been avoided. 79This Court has regularly dealt with incidents which have occurred when workers have been confronted with a task that falls outside of their usual duties and to which no formulised safety procedure has been implemented, albeit, that was not the situation that confronted Mr Vega and Mr Asciutto. It is imperative that employers have other procedures which are available to the workers to utilise in the event they undertake tasks which are not part of their usual regular work. This was not the case here. This Court has sought to emphasise that an employer's obligations to ensure the safety of its workplace is not confined to reactive steps, but includes proactive steps: Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149: Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209 and WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85. 80Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd [2000] NSWIRComm 277; (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In this matter, Mr Vega suffered fatal injuries. 81Section 21A(2)(i)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved a grave risk of death to another person or persons is an aggravating factor to be taken into account in determining the appropriate sentence for an offence. It follows, and I find, that the breach was a serious one falling within the mid range of seriousness. Mr Luitingh submitted that were I to reject the evidence of Mr Galvez in his statement of 1 June 2011 and find that he should have supervised Mr Vega appropriately, "conceivably the level of criminality would be above the low range, but less than the mid range." If the culpability of the defendants fall above the low range, it must therefore fall within the bottom of the mid range or higher. It cannot be less than the mid range. 82In my view, both the corporate defendant and the personal defendant have the same degree of culpability in relation to the offences. The personal defendant was the sole director and owner of the corporate defendant and employed by it. The personal defendant managed the business and performed painting and other related tasks for it, including the erection of scaffolding and supervision of workers. 83On the day of the incident, the personal defendant was performing work at the site. This included directing other workers of the corporate defendant, including Mr Vega, as to the tasks that they should undertake.
General deterrence 84As to general deterrence, I consider it is appropriate in the case of both defendants, to once again draw attention to the need for employers and contractors working in the painting and building industry, particularly small to medium sized employers and contractors, to be constantly vigilent of the need to ensure that employees are not exposed to risks to their health and safety by reason of the failure of employers and their supervisors to ensure that employees are not exposed to the risk of falling from heights. The method adopted by Mr Vega in climbing the ladder was clearly extremely unsafe. Despite this Court in numerous cases drawing to the attention of employers and contractors the risk of falling and the need to ensure proper health and safety systems are in place for employees working at heights, this Court continues to be called upon to sentence employers for failures which present obvious and foreseeable risks to safety. 85I respectfully adopt the observations of her Honour Backman J in Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208, where her Honour stated at [10]: General deterrence is also an important consideration in the circumstances. The risk of falling is an all too common feature of many occupational health and safety prosecutions in this jurisdiction. Many of those prosecutions have involved serious injuries (and sometimes fatalities) which in many cases could have been avoided by the implementation of relatively straightforward protective measures. As in the present circumstances the evidence which emerges from those prosecutions is that the risk of falling is often obvious and foreseeable. These matters highlight once again the need to alert employers who operate in industries where workers work at heights to the importance of ensuring the implementation of safe work practices, of safe training regimes and of conducting proper risk assessments in relation to the searching out and detection of any unsafe plant, hazards, practices or operations which might or could expose workers to the risk of falling: see WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], [28]. 86I include a significant element in the penalty for general deterrence.
Specific deterrence 87In relation to specific deterrence, I accept that in light of the evidence, this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendants from further offending against the OHS Act and/or for the purpose of compelling the defendants' attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. However, as the corporate defendant is still operating and the personal defendant is its director, I include a component in the penalty for specific deterrence.
Subjective factors 88The relevant subjective factors include a late plea of guilty. The matter was first listed before the Court on 20 April 2010 and the defendants did not enter a plea. It was again listed before the Court on 24 August 2010, when no plea was entered. On 18 October 2010, the defendants filed a notice of motion seeking that the charges be dismissed. The motion was dismissed by the Court on 30 December 2010: Inspector Castro v Stratabuild Pty Ltd [2010] NSWIRComm 191. 89The matter was subsequently listed as a defended hearing for five days, commencing on 15 February 2011. The hearing dates were vacated on the first day of the hearing on the defendants' application. The matter was listed for a defended hearing for five days commencing on 9 June 2011. On 7 June 2011, two days before the commencement of the defended hearing, the defendants entered pleas of guilty to the charges. 90In R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 , Spigelman CJ, (with whom Wood CJ at CL, Foster AJA and Grove and James JJ agreed) discussed the guidelines application to offences against the laws of New South Wales at [160]: The Court should adopt the following guideline applicable to offences against State laws: (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. 91However, earlier, Spigelman CJ, with whom the other members of the Court agreed, said at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 92Mr Magee submitted that the lateness of the plea had resulted in little savings and therefore the utilitarian value of the guilty plea in the circumstances was limited. Taking all of the above factors into account, I propose to allow a discount of five per cent for the pleas of guilty. 93I also take into account that the defendants took immediate steps to introduce systems of work to ensure the health and safety of the employees to which I have earlier made reference. However, I note that the defendants did not provide any evidence to the Court regarding the defendants' contrition, apart from its late plea of guilty and subsequently moving to put in place additional systems of work. 94The defendants sought to rely, in respect of the overall assessment of their culpability, that Mr Vega had an OHS General Induction for Construction (formerly a green card); an elevated Work Platform (EWPA) Yellow Card, having completed a course and received a Yellow Card as a trained operator; completed a rail safety induction course conducted by Southern Cross Rail Training Pty Ltd; as an employee of the corporate defendant provided, reviewed and signed a SWMS/JSA and Hazard Assessment Sheet at Coledale Railway and Como Railway Stations prepared by Everest Consulting Pty Ltd to whom the corporate defendant was subcontracted. Although I take these matters into account in my view, they are of limited relevance, as they were not courses or certificates that the defendants had as part of their requirements in respect of their safe work method systems. The remedial steps taken and implemented by the defendants after the incident demonstrated why this must be the case. 95As neither of these defendants have prior convictions, the maximum penalty in respect of the corporate defendant is $550,000. The maximum penalty in respect of the personal defendant is $55,000. 96It is important to restate that careful attention must be given to the maximum penalty in determining sentence. 97In Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153; (2009) 188 IR 79, the majority observed as follows at [55]: Recently, Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92, in an extensive review of the principles applicable in occupational health and safety sentencing matters, observed in respect of determining the maximum penalty as follows at [192]: (i) Maximum Penalty In Morrison v Powercoal (2005) (at [16] and [17]), the Full Bench observed that a fundamental consideration in determining penalty is the maximum penalty for an offence. In R v Moon (2000) 117 A Crim R 497 at [70], Howie J described "the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence" as being "crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed". Wright J, in Walco (at [23]), described the task of the Court in sentencing as "assessing the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided" (see Independent Cargo at 4). Ultimately, maximum penalties will have significance in sentencing in accordance with the statement of the High Court of Australia (per Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case... And at [56]: ... It is most important that sentencing under any regime be done against the maximum penalty, not on the basis of what is thought to be fair in any case. 98Taking into account the appropriate seriousness of the offences, together with all of the factors set out earlier in these reasons, I impose a fine of $175,000 on the corporate defendant. I impose a fine of $15,000 on the personal defendant. 99The prosecutor seeks a moiety and costs, which I propose to grant.
Orders 100I make the following orders: Matter No IRC 195 of 2010
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: 15 July 2011
Inspector Casto
Stratabuild Pty Ltd
(1999) 94 IR 188
(1994) 60 IR 149
(2009) 186 IR 125
(2005) 141 IR 465
(2003) 130 IR 364
(2000) 49 NSWLR 383
(1974) 131 CLR 510
(2009) 188 IR 79
(1983) 152 CLR 657
(2000) 95 IR 383
(1998) 82 IR 80
(1995) 100 IR 248
(2004) 60 NSWLR 168
(1999) 90 IR 464
(2000) 49 NSWLR 610
(1999) 92 IR 8
(1999) 90 IR 432
(1993) 47 IR 1
(1996) 83 IR 446
(1998) 82 IR 118
(1999) 90 IR 397
(2000) 99 IR 163
(2005) 228 CLR 357