3 The offences were found proven as charged except for particular 7(f) and 8(f) in the charges brought against Infinity Constructions Pty Limited ('Infinity') and Mr Alan Yazbek (see June judgment at [133]).
4 Evidence was called from Mr Alan Yazbek, a director of the corporate defendant Infinity, and a number of documents were tendered. That evidence was received in relation to the offences of which Mr Yazbek and Infinity had been found guilty. Mr Moussalli, a director of M&H Bricklaying Services Pty Limited ('M&H Bricklaying'), which had gone into liquidation and against whom the offence charged was thereafter not pressed, continued to represent himself at the hearing on penalty. He did not lead any evidence, despite the hearing of the matter having been adjourned on an earlier occasion, in order that he could seek legal advice and avail himself of the opportunity to lead evidence on penalty, if he wished.
The prosecutor's case
5 It was the prosecutor's case that each offence was a serious first offence. In the case of the corporate defendant, the maximum penalty was $550,000 and in the case of the individual defendants, it was $55,000.
6 It was submitted that the offences were broad or multifaceted, with the relevant acts or omissions falling into two broad categories, concerning failures in the applicable safety systems and work systems, during the construction of the particular wall which collapsed in February 2004. The risk which arose was the risk of the wall collapsing, with resulting serious injuries, or even fatalities. This risk was obvious and clearly foreseeable. The risk of wall instability was a risk of which the defendants were aware, being identified in contractual documentation, as well as in the applicable Australian Standard, which was referred to in the relevant plans. Those plans and the contract required that the Standard be adhered to, but it was not.
7 The failures arose from non-compliance with Infinity's occupational health and safety system and the instability of the wall constructed that day by M&H Bricklaying. The deficiencies which led to the collapse arose from the work method adopted. The original safe work method statement supplied by M&H Bricklaying to Infinity identified stability as a risk during construction. It was rejected by Infinity, which required another safe work method statement to be prepared, by reference to a WorkCover publication 'An Identification Tool for Bricklaying Hazard Profile 2001'. The result was that M&H Bricklaying prepared and Infinity accepted, a revised work method statement which did not deal with the safe construction of walls such as that which collapsed.
8 The evidence showed that the Infinity paper safety system was not complied with in practice, in significant and substantial ways. These deficiencies and Infinity's primary reliance on subcontractors such as M&H Bricklaying, having the necessary experience and knowledge to undertake the works they were contracted to perform, in a competent and safe manner, led to the manifestations of the risk of the wall collapse.
9 The evidence demonstrated serious breaches, evidenced by the nature of the injuries which resulted for those struck by the collapsing wall. The seriousness of these offences was further revealed by the simple, straightforward steps which the defendants could have taken, in order to preclude the risk manifesting. This was evidenced by the system devised by Ashby Doble after the incident, which was implemented. No defendant turned their mind to the obvious safety risk which manifested on 12 February, before the wall collapsed that day. Mr Moussalli disregarded the obvious safety risks of the approach adopted; the contractual obligation to comply with the Australian Standard and the warning signs that the wall would be unstable, as it was constructed. On the evidence, M&H Bricklaying effectively had no occupational health and safety systems in place.
10 It followed that the penalties to be imposed required both general and specific deterrence to feature as elements of penalty. The construction industry was notoriously dangerous and wall collapses frequently came before the Court in prosecutions brought under the Act. While Infinity's operation in the industry had reduced, as the result of a corporate re-organisation, both individual defendants still worked in the industry. It was accepted, in those circumstances, that diminished weight would be given to specific deterrence in the case of Infinity, but not in the case of the other two defendants.
11 As to subjective factors, as all defendants pleaded not guilty, no discounts for a plea arose. As to Infinity, it was submitted that actions taken after the collapse were delayed, taking some 2-3 years after the accident to implement. It was noted that it was difficult to determine the respective culpability of the three defendants; there were distinct obligations imposed on Infinity and Mr Yazbek, as opposed to Mr Moussalli. As to parity, the positions of Mr Yazbek and Infinity, were submitted to be the same.
The case for Infinity and Mr Yazbek
12 It was argued that when assessing the objective seriousness of these offences, the Court would take into consideration, factors such as that there was a safety system in place, although the application of the system to the construction of the wall was deficient. Infinity did not simply receive documentation from M&H Bricklaying, it reviewed and found the information deficient and required a new safe work method statement to be developed, having regard to a WorkCover hazard identification tool. It was however, accepted that the new statement was deficient in not dealing with the risk of masonry walls collapsing. Infinity required adherence to the Australian Standard as a contractual term, as well as requiring propping of lintels and bracing of walls above 2.7 metres, and all other walls at the site were constructed without incident.
13 It was also relevant that while this wall was not braced, there was evidence that other walls had been constructed on this site, where bracing had been used. One of Infinity's senior site supervisors had identified concerns with the approach of M&H Bricklaying, which he had raised with Mr Moussalli, but not with those Infinity had given responsibility for site safety. Infinity had necessary resources available, to have braced this wall and propped its lintels, although it was accepted that the necessity for this work was not discussed, or planned, prior to construction commencing.
14 It was a contractual requirement that the work be supervised at all times by a qualified bricklayer. Mr Moussalli was responsible for that supervision at the time of the collapse, when the site supervisor Mr Richardson was participating in a site safety meeting. Mr Yazbek was not on site. It was relevant that the risk of the wall collapsing did not precipitate until after Mr Richardson had left.
15 It followed that this was not a case of complete ignorance of Infinity's obligations under the Act, but rather insufficient attention to detail, together with circumstances where the site supervisor had left to attend to other duties. It followed that, objectively, this was not the most serious of offences, although it was accepted that 'it may have been avoided.'
16 General deterrence was accepted as forming an element of penalty, but it was argued that in the case of Infinity, specific deterrence would have a significantly reduced role to play, given that it no longer performed work in the industry. It was submitted that Infinity's response to the accident would also be taken into account. As to Mr Yazbek, it was also argued that the likelihood of his re-offending, was diminished. Detailed submissions were advanced in relation to the steps taken by the new corporate vehicle of which he is a director, to ensure that its obligations are met, when work in the construction industry is undertaken.
17 It was also submitted to be relevant that Infinity had operated in the industry for almost 12 years, without breach of its safety obligations and that Mr Yazbek should receive the benefit of that record. Account would also be taken of the extensive evidence attesting to his good character and commitment to ensuring safety on building sites where Infinity worked.
18 It was argued that there was also evidence of remorse, shown by co-operation with WorkCover and emergency services; steps taken after the accident, to revisit safety obligations and Mr Carney visiting injured workers in hospital. Mr Yazbek had also expressed his sorrow and regret that the incident had caused injuries to various workers and had extended his apologies to them, in his evidence.
19 As to parity, it was accepted that there was an extensive difference between the size and operation of Infinity and M&H Bricklaying. It was argued however, that Mr Moussalli and M&H Bricklaying had greater culpability for what had occurred. Mr Moussalli was supervising the work directly. He was licensed and experienced; had been provided with plans which identified the maximum 2.7m height and had agreed to a contractual requirement to adhere to the Australian Standard. It was accepted that Infinity had failed to identify the risks associated with wall construction; the need for temporary bracing and the method of construction to be adopted; to discuss the method of construction with Mr Moussalli, or to remind him of the need for propping and bracing the wall, or the height to which it was to be built. It, however, did not leave the work unsupervised, Mr Moussalli was providing the supervision. It was also relevant that the risk did not materialise until after Mr Richardson had left. It was also relevant that neither Infinity or M&H Bricklaying had identified the need to induct workers in the risk of wall collapse. It was argued that it followed that Mr Moussalli had the greater culpability, in all of the circumstances.
20 An application was made under s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to Mr Yazbek. It was submitted that the evidence showed that Infinity had employees on site with responsibility for supervision; Mr Richardson and Mr Faulkner, were aware that masonry walls were not to be built higher than 2.7m. The Safety Officer, Mr Carney, had reviewed and amended the M&H Bricklaying safe work method statement. None of these employees raised any safety issues with Mr Yazbek, in relation to M&H Bricklaying. It followed that he was entitled to assume that there were no problems with the manner in which it was performing its work. Mr Yazbek was also entitled to assume that M&H Bricklaying's construction was progressing in a proper and safe manner, given its awareness of the contractual requirement to comply with the Standard.
21 It was also relevant that Infinity had a safety management plan in operation at the site and that Mr Yazbek attended the site, from time to time, to consider safety issues. Mr Yazbek's good industrial record and his character and commitment to safety, should lead to the exercise of the discretion.
Prosecutor's opposition to the section 10 application
22 The prosecutor opposed the application, submitting that it would be noted that Mr Yazbek had pleaded not guilty, to a strong prosecution case, involving an obvious breach of the obligations imposed by the Act.
23 The authorities were clear, it was argued, that the s 10 discretion should only be exercised in extraordinary and exceptional circumstances. That high standard was not reached in this case, where Mr Yazbek sought to argue that others did not comply with their obligations under the Act; those failures were not known to him and therefore, grounds for the exercise of the discretion in his favour arose.
24 The evidence of non-compliance with Infinity's safety system, it was submitted, showed that such non-compliance had not been an isolated event. Nor was it an aberration, it was far reaching. Further, on the evidence, the reasons for the wall collapse here in question, were multifaceted. Those factors must also take the circumstances of this case, well away from those required by s 10, as permitting the exercise of the discretion sought.
Mr Moussalli
25 Mr Moussalli had but relatively little to submit. Despite the difficulty of he making submissions about matters which he declined to give evidence about, being explained to him, Mr Moussalli persisted in his refusal to give any evidence. His submissions were short and may be conveniently quoted: