Inspector Chaston v G & P Coupland Cranes Pty Limited & Anor

Industrial Relations Commission (NSW)|2005-09-28|Before: Boland J, Mr P, Ms J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector Chaston v G & P Coupland Cranes Pty Limited & Anor [2005] NSWIRComm 347

PROSECUTOR Inspector Melissa Chaston

SECOND DEFENDANT Garry Coupland

CATCHWORDS: Occupational Health and Safety - Prosecutions under s8(2) and 26(1) of Occupational Health and Safety Act 2000 - Sub contractor suffered third degree burns after receiving electric shock whilst unloading roofing material from crane - Crane came into contact with overhead powerline - Building industry - Plea of guilty - Application of Fines Act - Application of s 10 of Crimes (Sentencing Procedure) Act 1999 - Penalty imposed

Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Victims Compensation Act 1996

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, (2000) 99 IR 29 Inspector Christopher Downie v Menzies Property Services Pty Limited (2004) 136 IR 449 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2004) 138 IR 21 Inspector McColl v Combined Crane Rigging & Arthur Didovich [2004] NSWIRComm 48 CASES CITED: Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Morrison v Powercoal Pty Ltd & Anor. (No 3) [2005] NSWIRComm 61 Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 WorkCover Authority of New South Wales (Inspector Chaston) v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254

PROSECUTOR Mr P Skinner of counsel Solicitor: Ms J Healy LEGAL REPRESENTATIVES: Phillips Fox

FIRST AND SECOND DEFENDANT Mr G Coupland in person

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR MELISSA CHASTON v G & P COUPLAND CRANES PTY LIMITED

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

Prosecution under s 26 (1) of the Occupational Health and Safety Act 2000

1 Mr Garry Coupland ("personal defendant") was a director and general manager of G & P Coupland Cranes Pty Limited ("corporate defendant"), which carried on the business of mobile crane hire and occasional general rigging and structure work. The corporate defendant employed Stephen Moffitt as a mobile crane driver and Craig Elliot as a dogman. 2 Vaughan Constructions Pty Limited carried on a construction business and was the principal contractor at a site at 60 Larra Street, Yennora where a warehouse facility was being constructed. Vaughan Constructions had contracted Royce Roofing Services Pty Limited to supply, deliver, erect and install roofing for the warehouse under construction. Royce Roofing in turn contracted the corporate defendant to supply a mobile crane and dogman to lift packs of metal roof sheeting from the back of a truck onto the roof structure of the warehouse. Royce Roofing employed or engaged Bryce Paton, Justin Westall, Gary Windass and Jason Elliot. 3 On 24 May 2002 Mr Paton was on the roof of the warehouse building with Messrs Westall, Windass and Elliott unloading packs of roof sheets and laying the roof sheets onto the roof structure. Westall had asked Paton to help him land the fourth pack that had been lifted that morning by the mobile crane. Mr Paton grabbed the pack whilst it was in mid air in order to guide it onto the roof and received an electric shock. The metal sheeting had apparently come into contact with, or was close enough to form an arc with, overhead powerlines above the Larra Street footpath carrying 11,000 volts of electricity and estimated to be 3.5 metres from and parallel to the wall of the warehouse. 4 The electric current entered Mr Paton's body through his right hand and exited through his left foot. He fell forward onto safety mesh and subsequently went into convulsions. He was immediately taken to hospital. Mr Paton sustained first, second and third degree burns to his right hand, left foot and left shoulder and scratches to his face. A skin graft was required for the injuries to his foot. Mr Paton returned to work on light duties 14 weeks after the incident. As at 10 September 2002, Mr Paton was attending therapists due to difficulties with walking and with the range of movement in his right hand. 5 The corporate defendant and the personal defendant were charged in relation to what happened on 24 May 2002. The corporate defendant was charged under s 8(2) of the Occupational Health and Safety Act 2000 and the personal defendant was charged under Section 8(2) and Section 26(1) of that Act. Those provisions are in the following terms: Section 8(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. Section 26(1) Offences by corporations - liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 6 Both defendants entered pleas of guilty. Mr Coupland appeared in person on behalf of himself and the corporate defendant. The Court satisfied itself that Mr Coupland understood the implications of pleading guilty and that he did not require any legal advice before entering the pleas. It should be noted that Vaughan Constructions was also charged. It pleaded guilty and a fine of $45,000 was imposed: See WorkCover Authority of New South Wales (Inspector Chaston) v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254. In relation to Royce Roofing the Court was advised that entity had not been prosecuted; the company was insolvent and the director of the company was experiencing "pretty severe psychological problems".

7 In relation to the corporate defendant it was alleged that being an employer it failed to ensure: [P]ersons not in its employment, in particular Bryce Paton, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while at the Defendant's place of work. Particulars of the Defendant's breach are as follows: 1.1 Failed to provide or maintain systems of work that were safe and without risks to health to prevent non-employees from receiving electric shocks while assisting with the Defendant's crane operations at the premises in the vicinity of aerial power lines;

1.2 Failed to ensure that crane loads being lifted by the Defendant at the premises did not approach within an unsafe distance of aerial power lines; 1.3 Failed to ensure that non-employees working in the vicinity of aerial power lines at the premises did not come into contact with any part of a crane load being lifted by the Defendant, except with a non-conducting tagline, following the commencement of a lift; 1.4 Failed to ensure a reliable method of communication between its employees and other persons assisting with the Defendant's crane operations;

1.5 Failed to ensure that a person was designated to spot the crane loads specifically in relation to aerial power lines during its crane operations;

1.6 Failed to conduct an adequate assessment of risks to health and safety posed to non-employees assisting with the Defendant's crane operations at the premises in the vicinity of aerial power lines, including identification of hazards and appropriate control measures; 1.7 Failed to provide such information, instruction, training and supervision as may be necessary to ensure the safety of non-employees at the premises; As a result of the Defendant's breach, Bryce Paton sustained serious personal injury. 8 In relation to the personal defendant it was alleged that: [O]n 24 May 2002, Garry Coupland, the Defendant, a Director of G&P Coupland Cranes Pty Limited (ACN 003 479 052), breached s26(1) of the Occupational Health & Safety Act 2000 , in that G&P Coupland Cranes Pty Limited, an employer, at 60 Larra Street, Yennora in the State of New South Wales ( premises ) breached Section 8(2) of the Occupational Health and Safety Act 2000 , in that it failed to ensure persons not in its employment, in particular Bryce Paton, were not exposed to risks to their health and safety arising from the conduct of G&P Coupland Cranes Pty Limited's undertaking while at G&P Coupland Cranes Pty Limited's place of work. 9 The charge then recited the particulars of the charge against the corporate defendant. 10 The prosecutor tendered a statement of facts. Mr Coupland indicated his agreement to the statement subject to a number of agreed changes. Also tendered by the prosecutor was: a series of colour photographs of the incident scene; a factual inspection report made out by Inspector Jim Allison on 31 May 2002; a work method statement and risk analysis dated 24 May 2002 and copies of various certificates of competency held by Messrs Coupland, Moffitt and Elliott; a site plan for "Proposed Warehouse and offices, 60 Larra Street, Yennora" dated April 2001; Australian Standard 2550.1 - 1993, Cranes - Safe Use Part 1: General Requirements; prior conviction reports for the two defendants showing no convictions for either defendant; and, a document under the corporate defendant's letterhead entitled "Occupational Health & Safety Management Tool" such document having been prepared after the incident on 24 May 2002 as part of the defendant's effort to improve its policies and practices regarding occupational health and safety. 11 Returning to the agreed statement of facts, in addition to the bare factual background described earlier, there are a number of other matters relevant to the sentencing process to be drawn from the statement: (1) There were no 'tiger tail' covers attached to the power lines to increase their visibility. There were no ground barriers or signage to warn workers of the presence of the power lines or the hazards of working in the vicinity of power lines. (2) The premises were under the control of Vaughan Constructions Pty Limited. Vaughan Constructions Pty Limited was responsible for the coordination of subcontractor activities at the premises. (3) G&P Coupland Cranes Pty Limited did not ensure a safe system of work for the lifting process. (4) The location of the mobile crane was selected following consultation between representatives of G&P Coupland Cranes Pty Limited, Vaughan Constructions Pty Limited and Royce Roofing Services Pty Limited. (5) G&P Coupland Cranes Pty Limited identified a risk posed by the power lines in a documented risk assessment prepared on the day of the incident, but failed to identify the seriousness of the risk or adequate control measures. The crane crew did not prepare a job safety analysis required under G&P Coupland Cranes Pty Limited's documented work procedure for high risk activities. (6) Royce Roofing Services Pty Limited had provided Vaughan Constructions Pty Limited with a Work Method Statement and Risk Analysis. However, that analysis did not specifically identify the power lines as posing a risk, and failed to provide adequate control measures to address the risk of a crane accident that was identified in the analysis. Vaughan Constructions Pty Limited was aware of the power lines but took the view that the work activities at the premises were sufficiently distant from the power lines and did not require any special measures. (7) Neither Royce Roofing Services Pty Limited nor G&P Coupland Cranes Pty Limited prepared a written risk assessment and safe system of work in line with the requirements of the relevant electricity supply authority, contrary to clause 64(2)(e) of the Occupational Health and Safety Regulation 2001. (8) It was not possible to position the crane in such a way that the driver could see the progress of the load beyond the wall of the warehouse building. The dogman, C Elliott was unable to see the proximity of the load to the power lines as he was on the opposite side of the crane to the load. The crane crew relied upon the Westall, Paton and Windass ( the roofers ) on the roof structure of the warehouse building to assist with manoeuvring and spotting the crane loads. Nobody was designated to 'spot' the load specifically in relation to the power lines. (9) It was Paton's first day working at the premises, and he had not received site induction training from Vaughan Constructions Pty Limited. (10) C Elliott checked each load before it was sent up to the roof. He controlled the movement of the load by whistle and hand signals, and through use of a non-conductive tag line. C Elliott dogged the load off the truck by walking whilst holding the tag line towards the warehouse building, where he would pass the tag line to the roofers. (11) G&P Coupland Cranes Pty Limited did not make any assessment in relation to the system of work adopted for the lifting process, including the competency of the roofers to assist with the lifting process, the number of persons necessary to safely perform the procedure or the allocation of roles such as power line observer. G&P Coupland Cranes Pty Limited failed to ensure adequate supervision of the lifting process or a safe system of work for the lifting process. (12) On the fourth lift the tag line became uncontrolled, and the load slewed towards the power lines. The crane driver was in the process of obeying a roofer's hand signal to hook down when the load came into contact with or near the energised power lines. The pack became energised after contacting or passing near the overhead electrical conductors (the energised phases) located on the Larra Street frontage of the premises, either through direct contact with the load or through arcing. (13) Paton, whilst manoeuvring the load, came into contact with an 11,000 volt electrical current. (14) There was a failure to ensure, contrary to the Australian Standard for Cranes AS 2551.1 - 1993 as it was at the date of the incident, that the load and crane shall not approach any closer than 2 metres within distribution lines on a power pole. There was a failure to ensure, contrary to the recommendations of the relevant energy supplier, that the load and crane shall not approach any closer than 3 metres within distribution lines on a power pole. (15) The roofers, including Paton, had not received any training or instruction about the safe method of working with cranes or near aerial power lines. These matters were not included in induction training provided by Vaughan Constructions Pty Limited. (16) G&P Coupland Cranes Pty Limited did not comply with the Australian Standard for Cranes AS 2551.1 - 1993, whereby a crane operator and other persons working with cranes near aerial power lines must not allow any person, other than the crane operator, to be in contact with any part of the crane or the load except with a non-conducting tagline, once the lift has been commenced. (17) Verbal and visual communication between the crane crew and the roofers during the lifting process was ineffective. G&P Coupland Cranes Pty Limited failed to ensure a reliable method of communication between the crane crew and the roofers. (18) G&P Coupland Cranes Pty Limited failed to give consideration to de-energising the overhead power lines prior to works commencing. G&P Coupland Cranes Pty Limited failed to consult the appropriate energy authority to consider risk avoidance and control measures for work at the premises. (19) After the incident G&P Coupland Cranes Pty Limited revised its safety policy and implemented an occupational health and safety management tool. (20) After the incident a spotter was used on the occasion of a further lift of materials at the premises. 12 Mr Coupland tendered a bundle of documents that revealed the following: (1) Information regarding the financial circumstances of the corporate defendant. The company ceased trading on 30 June 2005 due to Mr Coupland's ill health and his inability to work. A medical certificate was provided indicating Mr Coupland was "permanently unfit to return to work on a construction or building site." He suffers from sleep apnoea, a heart condition, high blood pressure and has had two knee replacements and a potential hip replacement. (2) It was not entirely clear from the financial information provided just what the corporate defendant's means were but according to an interim balance sheet as of August 2005 the company's net assets were $71,931.26. Total equity was $71,931.24. (3) Mr Coupland is currently on sickness benefits and receives $400 per fortnight. He is 59 years' old with assets totalling $10,000, most of this residing in a motor vehicle. He does not own a house or any other property. (4) There were three character references from executives of John Holland Pty Ltd and Denham Constructions Pty Ltd that referred to the defendants' high standards of work and safety. Consideration

13 The corporate defendant's offence is constituted by multiple failures as the particulars reveal. Some of the worst features of the offence include: (1) Knowing of the risk posed by the power lines and failing to take adequate measures to ensure the power lines did not constitute a risk to safety. (2) Using the mobile crane within a distance of untagged power lines and lifting unwieldy packs of 10 metal roof sheets measuring 24 metres x 1 metre where it was possible for the sheets to come in contact with or close to power lines. (3) Positioning the crane in such a way that the dogman was unable to see the proximity of the load to the power lines and relying on other persons to assist with manoeuvring and spotting the crane loads not knowing the competency of the other persons to perform those tasks. (4) Failing to ensure that non-employees working in the vicinity of power lines did not come into contact with any part of a crane load being lifted by the corporate defendant, except with a non-conducting tagline, following the commencement of a lift. (5) Failing to ensure a reliable method of communication between its employees and other persons assisting with the corporate defendant's crane operations. (6) Failing to ensure that a person was designated to spot the crane loads specifically in relation to the power lines during the lifting operation. 14 There is a significant factor mitigating the seriousness of the offences and that is that Mr Moffitt and Mr Elliott were both experienced operators. Mr Moffitt was a certified crane driver with 16 years' experience in crane operations. Mr Elliott was a certified dogman with four and a half years' experience. They knew of the risk posed by the power lines but failed in very significant ways to adopt a safe system of work, which they were capable of doing. If it were not possible to lift 24-metre long sheets of roofing onto the roof safely because of the position of the warehouse vis a vis the power lines then the lift should not have been undertaken. 15 It was appropriate for Mr Coupland to have been prosecuted. He was concerned in the management of the defendant corporation and pleaded guilty to the charge, meaning that he accepted that he was in a position to influence the conduct of the corporation in relation to its contravention or he failed to use all due diligence to prevent the contravention by the corporation. What I find difficult to understand, however, is why Mr Moffitt and Mr Elliott were not charged in relation to the incident under s 20 of the Act, for instance. Being very experienced operators they had a clear responsibility to undertake the work safely. They manifestly failed in that regard. 16 The other mitigating factor is that this was not a situation where the corporate defendant had no system in place in relation to occupational health and safety. The corporate defendant did have a health and safety policy, the employees were appropriately certificated and the crane driver was required to complete a risk assessment checklist. On 24 May 2002, Mr Moffitt completed the checklist but regarded the risk associated with nearby power lines as "low". 17 Turning to other considerations that may assist in assessing the objective seriousness of the offences, where the risk is reasonably foreseeable and there has been a failure to take adequate steps that might have been available to avoid the risk, an offence will generally be regarded as more serious than otherwise might have been the case: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2004) 138 IR 21 at [87]. The risk associated with operating a mobile crane where the load might come into contact with power lines was not only reasonably foreseeable, it was glaringly obvious and there was certainly a failure to take adequate steps to avoid the risk. Such steps were available and were not at all onerous, as the particulars show. If it were judged, even with the taking of all available safety precautions, that the lift could not be undertaken safely it should not have been undertaken at all. 18 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [31]-[33]. Further, s 21A of the Crimes (Sentencing Procedure) Act 1999 provides: (2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: …

(g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... 19 In this case, Mr Paton suffered very serious injuries and if it were not otherwise obvious that using a mobile crane to lift metal sheeting in proximity to power lines presented a serious risk to health and safety, Mr Paton's injuries leave no doubt. 20 The Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the offender from re-offending. In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71] to [80] the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. Building sites, by their inherent nature, have the potential to be unsafe: Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49. Mobile cranes are a common feature on building sites and the danger from power lines a commonly encountered risk to safety. It is appropriate that I include in the penalties an element for general deterrence. 21 In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence. Mr Coupland indicated that it was his intention to "close the company". His state of ill health prevents him from undertaking work and his doctor has indicated he is permanently unfit to work in the construction industry. I cannot see any basis for including in the penalty an element for specific deterrence. 22 In considering the relevant subjective factors, the defendants entered pleas of guilty and the prosecutor accepted they were early pleas. I accept that both defendants have very good records with no convictions having been recorded against either defendant in many years of operating mobile cranes. Mr Coupland expressed contrition on behalf of the defendants. Further, steps were taken following the accident on 24 May 2002 to improve the corporate defendant's approach to occupational health and safety with the introduction of a safety management strategy, including new policies and procedures. 23 The corporate defendant is essentially a small family company with two directors, Mr Coupland being one. It is appropriate that I take this and the corporate defendant's parlous financial circumstances into account in sentencing: s 6 of Fines Act 1996. 24 In so far as the personal defendant is concerned, he is 59 years' old and his personal assets are meagre. He suffers from a number of medical conditions that make him unfit to work in the construction industry. He receives a sickness benefit of approximately $400 per fortnight to support he and his wife. Mr Coupland had no direct involvement in the incident on 24 May 2002 and he was relying on the skill, competence and experience of his employees to ensure the task of lifting the metal sheeting was carried out safely. Mr Coupland was entitled to rely on that skill, competence and experience. He is also entitled to feel a sense of injustice because his employees were not prosecuted in relation to the incident, nor was his fellow director in the business, Mr Irons, with whom he shared the responsibility for running the company. 25 Mr Coupland submitted that the Court should apply the provision of s 10 of the Crimes (Sentencing Procedure) Act 1999 to both defendants. Section 10 provides as follows: 10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition,

(d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 26 The application of s 10 was considered by a Full Bench in Inspector Christopher Downie v Menzies Property Services Pty Limited (2004) 136 IR 449. The Full Bench stated at [57]-[58]: [I]t is critical when determining a sentence to clearly distinguish those factors which are special considerations in sentencing, and in particular those which warrant the application of s10 of the Crimes (Sentencing Procedure) Act . …Given the existence of a clear line of authority establishing that such orders are available only in limited circumstances, any decision to make such an order must necessarily include an examination of the relevant circumstances and an explanation as to why those circumstances fall within the limited class of circumstances contemplated by the established authorities. The Full Bench in Profab Industries expressly stated (at [26]) that "...when a defendant seeks [the exercise of the discretion under s10] cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission." 58 We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Limited at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal , the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s10 of the Crimes (Sentencing Procedure) Act . Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s10 of the Crimes (Sentencing Procedure) Act , in stark contrast to the matter presently before us where there is a total absence of such reasoning. 27 It is apparent that it will only be in rare cases that s 10 will be available to a defendant under the Act and that if it is to be applied, "cogent reasons must … be provided by the defendant for such exercise and also by the judge acceding to that submission": Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 at [132]. 28 There were no "cogent reasons" put that would allow me to apply s 10 to the corporate defendant. It was a serious offence and although there are significant mitigating factors, including the financial state of the corporate defendant to be taken into account, there is nothing about the circumstances of the offence that would justify an order under s 10 of the Crimes (Sentencing Procedure) Act. 29 The question of parity arises for consideration. Vaughan Constructions was fined $45,000 for a breach of s 8(2) of the Occupational Health and Safety Act. I note that in his decision on sentence Marks J assessed the breach by the defendant as "being a serious one, but of a lesser and lower order than that applying to the roofing company and the crane company." The crane company referred to by his Honour was the corporate defendant. I respectfully agree with this finding. 30 Whilst I am required to take into account all of the relevant considerations in arriving at an appropriate sentence, primary consideration should be given to the objective seriousness of the offence. In particular, general deterrence is a matter of some importance in this case and it is appropriate that the penalty reflects the seriousness of the offence. Nonetheless, I have not lost sight of the significant subjective considerations here, including the role of the employees and the corporate defendant's limited means. It is also necessary to discount any penalty by 25 per cent for the utilitarian value of the early guilty plea. 31 I consider an appropriate penalty in respect of the corporate defendant is $75,000.

32 As to the application of s 10 in respect of the personal defendant, a different conclusion is available to that arrived at in respect of the corporate defendant. The personal defendant: (1) Is fifty nine years' old; (2) Is unlikely to work again in the construction industry; (3) Is in the process of closing down the corporate defendant; (4) Is in a poor state of health; (5) Has very limited financial means; (6) Was not directly involved in the incident on 24 May 2002 (cf the personal defendant in Inspector McColl v Combined Crane Rigging & Arthur Didovich [2004] NSWIRComm 48); (7) Relied on employees with the necessary experience, competence and skill to perform the work safely; (8) Was the only individual prosecuted in circumstances where the employees and his fellow director may have been liable to be prosecuted but were not; (9) Will have to bear a significant financial burden in meeting the penalty imposed on the corporate defendant and the costs of the proceedings; (10) In forty years in the mobile crane industry had no prior convictions. 33 I consider there are sufficient grounds to apply s 10 of Crimes (Sentencing Procedure) Act to the personal defendant. 34 Finally, I should express the Court's appreciation to Mr Skinner of counsel for the prosecutor in providing assistance to the Court in this matter through the help he gave to the unrepresented litigant, Mr Coupland, but within the proper boundaries of counsel's duty to his client.

35 The Court makes the following orders: Matter No IRC 2961 of 2004 - the corporate defendant

1 The offence is proven and a verdict of guilty is entered.

2 The defendant is convicted of the offence as charged. 3 The defendant is fined an amount of $75,000 with a moiety thereof to the prosecutor. 4 The defendant shall pay the prosecutor's cost of the proceedings in an amount of $17,226.85. Matter No IRC 2963 of 2004 - the personal defendant 1 Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, the Court does not proceed to conviction of Garry Coupland and dismisses the charge against him. 2 There shall be no order of costs against the personal respondent.

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