The Court accepts the prosecutor's submission and that of Hy-Tec as to the serious nature of Hy-Tec's breaches.
47 The written and oral submissions for Lejah did not directly address the issue of the seriousness of the breach it committed but substantially concentrated upon the actual work performed by Lejah and the fact that others, such as MDI, were more directly culpable in relation to the risk of the gate falling because there were no stops installed. It was pointed out that Lejah was not charged with being involved in the design of the gate and it was submitted (and that submission is accepted) that, in relation to the gate, Lejah was engaged as the fabricator but nevertheless it was the manufacture of plant related to the gates under s 11(1)(a). The Court accepts the prosecutor's submission that, obligations similar to that imposed by the Regulation on SDA as the designer of the gate, were also imposed upon Lejah under provisions dealing the manufacture of plant. Lejah, in addition, pleaded guilty to failing to make available any or any adequate information as to the risks to health and safety in relation to using the gate plant and failing to make available any or any adequate information as to the gate plant only being suitable for automatic operation. Further, there was a failure to make available any, or any adequate information to warn persons about the risk of manually using the gate plant. Having regard to these matters, the offences committed by Lejah are serious breaches.
Parity
48 In Postiglione v The Queen (1997) 189 CLR 295, the principles of parity and totality were considered by the High Court. In the joint judgment of Dawson and Gaudron JJ, it was noted that parity was a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. It had to be recognised that different criminal histories, for example, may justify a real difference in the goal term imposed. It is the application of the parity principle that was the main focus of the submissions for the defendants in these proceedings, with each defendant submitting that greater culpability lay with othersincluding those who had not been charged, such as Hannas and MDI.
49 In relation to the relative contribution of persons other than the defendants, the prosecutor drew attention to a decision of the Full Court of the Industrial Court in Morrison v Powercoal Pty Ltd and anor (No 3) (2005) 147 IR 117 at [123]:
Counsel for the corporate respondent relied, in particular, on the decision of Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]:
There can be no doubt, in my view, that in determining the culpability of a defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think, be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged.
50 In this context the prosecutor acknowledged that Hannas, as the project manager for the construction of the gates, "could have acted more safely by carrying out a risk analysis of the drawings received from SDA and Sunstate (Lejah) and by ensuring that gate stops were welded on all gate frames, particularly after the incident in November 2002".
51 It was submitted for SDA that in assessing the various participants' relevant culpability, the Court should proceed on the basis that:
(a) Hannas and Sunstate (Lejah) each made a significantly greater contribution to the relevant risk than any of the other contributors;
(b) Hy-Tec made a lesser contribution that either Hannas or Sunstate (Lejah) but a significantly greater contribution than SDA or MDI;
(c) SDA's contribution as found was appreciable but was significantly less than that of Hannas, Sunstate (Lejah) or Hy-Tec;
(d) MDI's contribution was probably less significant than that of SDA.
52 In making the submission as to the contribution of others, it was also submitted that the relevant risk particularised against SDA was identical to the risk particularised in the charges against Lejah and arose out of the same factual circumstances or substratum as the risk particularised in the charges against Hy-Tec. Reference was also made to written submissions filed by SDA in the liability proceedings where Hannas' role in providing management services and Mr Twomey's project management role were dealt with in some detail. The wide nature of services provided by Hannas was contained within an unsigned agreement with Bonfoal. In an interview with WorkCover, Mr Twomey had stated that Hannas had control of the construction project and he was the project manager. Hannas co-ordinated the design, construction and installation of the entrance gates. Hannas had engaged SDA and Hannas had taken the work performed by SDA, Lejah, MDI and others and had put them out to tender and so defined the work that each of them was to perform as part of the construction of the gates. Mr Twomey had engaged Lejah to supply the steel components of the gates and had engaged MDI to supply the operating equipment for the gates. Mr Twomey and Mr Stratti had co-ordinated the components to be supplied and the works to be performed by the various contractors. In relation to the design work carried out by SDA, Mr Twomey reviewed the drawings and requested changes and additions he considered appropriate. Mr Twomey approved Lejah's fabrication drawings. The overall evidence made it clear that Hannas and Mr Twomey had responsibility for the design and construction of the entrance gates. This contrasted sharply with the limited role played by SDA who had no contact at all with Lejah or MDI in relation to the gates.
53 It was submitted by SDA to be significant that in November 2002, during the installation of the gates when there was a near miss and a gate leaf fell while MDI were installing the gate operating equipment, at that time Hannas and Lejah became aware of the need to include stops as part of the finished gates. After this incident, in mid-November 2002, MDI's installation manager was told by Mr Stratti that the issue of stops was being addressed with the gate manufacturer and shortly thereafter Mr Stratti told him that stops had been installed. Mr Twomey's evidence was that, shortly after the gate leaf fell during installation, he discussed the installation of stops with Mr Stratti and authorised Lejah to design and install physical stops. While there was no conclusive evidence as to who installed the bolted stop, it was possible that Lejah's contracted fitter may have welded but not bolted the stops at this time. On the evidence there was no doubt that Hannas and Lejah were aware of the need for the stops in November 2002 and should have taken responsibility for the installation of stops on the western gate. SDA was not involved in this episode, was not asked to design or install the bolts and was not informed of the incident. The stops that were installed at this time were inadequate and the bolted stop was described by the expert professional engineer, Mr Colin Simpson, as being "grossly inadequate". Mr Proctor, the project manager for Hy-Tec, had been informed that the temporary stops had been installed and accepted that they were temporary measures.
54 MDI showed Hy-Tec how to automatically and manually operate the gates and those instructions were conveyed to others within Hy-Tec. After the plant was commissioned, Mr Proctor complained that the gates had to be manually operated and MDI thereafter conducted a service call. During 2003, Hy-Tec employees frequently closed the gates manually. It was submitted that there was no suggestion that Hy-Tec conducted any risk assessment of the temporary stops or the manual operation of the gates. The so-called "temporary stops" were not replaced. MDI serviced the gates throughout 2003.
55 In relation to SDA's participation it was again emphasised that theirs was a limited role concerned with the structural elements of the gate. It was submitted that SDA's contribution to the relevant risk was necessarily reduced by the fact that it performed only part of the design of the gate, being part of the design team co-ordinated by Hannas and where running gear and operating equipment were designed and supplied by others. It was also to be taken into account that SDA played no part in the failure to install adequate stops which occurred in November 2002, well prior to the relevant risk arising. Further, it was specifically and expressly envisaged that other designers, including mechanical engineers, would contribute to the final design and it was specifically and expressly envisaged that the design would not be finalised without further consultation between all the designers. SDA was not aware of the ongoing manual use of the gates in the period prior to the relevant risk arising.
56 The control exercised by Hannas and the circumstances already outlined should result in a finding that Hannas made a substantial contribution to the risk that existed in October 2003. Importantly, Hannas had failed to ensure that adequate stops were installed in November 2002 despite arranging for stops to be installed at that time, an action consistent with its role as project manager.
57 In relation to the contribution of Lejah, SDA submitted that it was the mechanical engineers on the project in relation to the design, supply and installation of the gates. Lejah denied that they were the mechanical engineers and pointed out that they were not charged as such. It was submitted that Lejah's fabrication drawings showed additional components of the gates and further details beyond those provided by SDA. Sunstate's fabrication drawings dealt with the wheels and type of rollers to be used on the gates, the number, positioning of the wheels and rollers and the brackets for the wheels and rollers and that was all Lejah's work. These matters all related to the operation or movement of the gates. It was appropriate, therefore, that Lejah also be given the task of providing and installing the stops. Ultimately, Lejah was involved in the installation of the stops and the gates.
58 MDI's role involved being contracted to supply and install the gate operating equipment. It was MDI that specified or selected the gate motor and associated operating equipment to be used in the construction or operation of the gates and they did so without reference to SDA. MDI also regularly attended the Mascot premises throughout 2003 in order to service the gates. The gate operating equipment it had supplied and installed had consistently failed. As a result of these service calls, MDI was aware that the gates were regularly being manually operated.
59 As to Hy-Tec, SDA submitted that the company was aware of the need for stops because of the near miss in November 2002 and they also knew that they were to be temporary stops. It was submitted that Hy-Tec contributed to the relevant risk by failing to take steps to assess the many operations of the gates where that manual operation regularly occurred because of failure of equipment. There was no suggestion that Hy-Tec conducted any risk assessment of the temporary stops or the manual operation of the gates and it was clear that the temporary stops were never replaced. Hy-Tec therefore failed in its responsibilities as an employer and a controller of premises.
60 All of these factors were relied upon to suggest that SDA's role was relatively minor and there were others, better placed and more appropriate to have detected the risk of the gates falling during manual operation and to have appropriate stops added to the gates.
61 It was pointed out in submissions made on behalf of Lejah that the necessary element of the charges in relation to which it had entered a plea of guilty was the failure to provide stops and the failure to provide information about manually using the gate plant and the associated risks. There was no allegation of inadequate stops being provided by Lejah. Significantly, Lejah had not pleaded guilty to any charge in respect of the design of the gate.
62 The quotes provided by Lejah did not include operating equipment and from the evidence it was clear that others would supply those components. In that respect Hannas had received a proposal from MDI, including recommendations, concerning safety equipment for the motorised gate. The ultimate scope of works issued to MDI in May 2002 included references to safety devices in the context of the gate opening and closing system. By reference to those contractual arrangements it was submitted that Lejah was not responsible for the overall fabrication and installation of the gates but was only responsible for a limited part of those aspects. The scope of works document issued to Lejah required it to co-ordinate their work with other contractors, including a "gate control equipment contractor". That contractor was responsible for the provision and installation of whatever control equipment was required for the operation of the gates and safety devices relating to the closure of the gates: these were expressly included as part of the control equipment contract and did not appear in the Lejah contract. Thus, MDI had the contractual obligation to deal with safety issues in relation to the gate opening and closing system.
63 Hannas, as project manager, was not only the contractor responsible to Bonfoal/Hy-Tec for the supervision of the various sub-contractors involved in the overall design fabrication, installation and commissioning of the gates but were in contractual relationships with each of those sub-contractors thus giving them a capacity to ensure that the gates finally installed were safe. Under the contract with Bonfoal/Hy-Tec, Hannas accepted the responsibility for occupational health and safety on site.
64 The occupiers of the premises, Bonfoal and Hy-Tec, were given clear warnings nearly 12 months before the accident of the defective state of the gates and failed to adequately respond or at all. Bonfoal and Hy-Tec permitted an unsafe work method, the manual operation of the gates, to become part of the system of work and failed to prepare any procedure manual to deal with the obvious hazards involved in the manual operation of the gate of which they had been warned. It was also submitted that MDI, being aware of the danger and having warned Hannas of the dangerous state of the gates as early as November 2002, had failed to remind Bonfoal/Hy-Tec of their failure to rectify the defect in the gates or to bring it to the attention of any relevant authority. During this time MDI was servicing the gates.
65 In relation to these matters it was submitted that the statutory breaches by Lejah were "relatively minor" by comparison to the culpability of other parties involved in the overall production and use of the gates. Lejah's breaches had a relatively minor causative effect in relation to the accident when compared to the roles of other relevant parties, not all of whom had been charged with similar offences.
66 In categorising its offences, Hy-Tec submitted that it had pleaded guilty to similar acts and omissions for offences under both ss 8(1) and (2) of the Act with the key risk being Hy-Tec's failure to provide and or maintain adequate devices such as stops to prevent the western leaf of the gate falling and also failing to undertake an adequate risk assessment on the manual operation of the gate. While Hy-Tec accepted its responsibility in those respects, it submitted that it was the last in a long list of entities that had the opportunity to ensure the existence of adequate stops on the gate. Hy-Tec had relied on the expertise in design, fabrication, d installation, motorisation and commissioning of the gates held by other entities and Hy-Tec lacked the specialist skills in respect of the gates that was carried out by many of the other entities involved in the gate project. Those entities had not adequately assisted Hy-Tec in managing risks associated with the gates. Hy-Tec's failure to adequately risk assess the gates would not have arisen had other entities involved properly used their expertise within the scope of their contractual responsibilities and ensured adequate stops were identified as being necessary and were fitted to the gate.
67 Hy-Tec accepted and adopted the factual findings and conclusions of law in SDA's liability decision of the Court and noted the observations of the Court concerning the necessity for risk assessment of the manual operation of the gates and the use of expertise to provide for the introduction of controls in the form of limiting devices capable of preventing the gates from passing out of their portals. Hy-Tec submitted that an analogous analysis could be extended to all of the entities that carried a contractual opportunity, within the scope of their expertise, to take remedial steps against the foreseeable hazards associated with the manual operation of the gates.
68 Addressing the chain of responsibility placed on other entities, Hy-Tec made the following submissions:
(a) Hannas; LSM; Twomey; Stratti - in respect of the failure to properly co-ordinate the delivery of safe gates to Bonfoal/Hy-Tec via proper contract supervision as project manager of the number of contracted entities in the chain; failure to foster and ensure adequate communication between the relevant contracted entities; and failure to properly input to the design drawings of SDA, the manufacturing drawings of Sunstate, the installation process of Sunstate and the supply, installation and commissioning of the electric motors for the gates by MDI:
(b) SDA - in relation to its design responsibility (Hy-Tec relies upon the decision of the Court in this regard);
(c) Sunstate - in respect of their failure at the manufacturing and installation stages to ensure the provision of adequate stopping devices on the western leaf of the western gate (Hy-Tec relies in this context upon the plea by Lejah Pty Ltd to the Application for Orders as particularised);
(d) MDI - which, despite their expertise in the area of gate operation and their stringent flagging of the relevant risk within their late 2002 correspondence, proceeded to install the electric motors and commission the gates absent the existence of adequate stops and thereafter to service the gates on no less than eight occasions between December 2002 and October 2003 without further raising the issue of the inadequacy or absence of stops on the gates at any time subsequent to their 16 December 2002 correspondence. Hy-Tec in its own failure to maintain adequate stopping devices on the gates relied heavily on the contracted servicing assistance and expertise of MDI in respect of the gates up to the incident on 14 October 2003.
69 On behalf of Hy-Tec it was emphasised that the evidence did not establish, beyond reasonable doubt, that Hy-Tec or any or its officers received a copy of the facsimile from Mr Twomey dated 17 December 2002, being a reply to MDI that steps had been taken to address the incident where a gate had fallen over during installation and that stops were being fitted. Even if it had been received at that time by or on behalf of Hy-Tec, it would have done no more than indicate the danger of the gate leaf falling had been addressed by the installation of stops. It was also submitted that there was no evidence, beyond reasonable doubt, that the stop bolted on the western leaf of the western gate did not remain in place and was not jolted out of position by the events on the evening of 14 October 2003. In addition, Hy-Tec was not provided with adequate instruction, guidance, documentation or training in respect of the operation and maintenance of the gates and the role of stops. What had occurred was that Hy-Tec had ultimately received inadequate and unsafe plant being the totality of the western gate in relation to electric and manual operation. While Hy-Tec failed to risk assess that gate, its failure related to a risk that had not been properly risk assessed, identified and controlled by no fewer than seven entities who had a prior opportunity and greater relevant expertise that Hy-Tec in relation to assessing the gates.
70 In oral submissions, Hy-Tec noted that the particulars of its charge arose some one and a half years after the charge concerning SDA. It was difficult to accept, in those circumstances, that somehow Hy-Tec had a greater responsibility than SDA for the accident. SDA's failure was fundamental and went to the design of the gate. In effect, SDA suggested that it was less responsible because others coming after it could have and should have done something to rectify a failure that began with SDA's design. While Hy-Tec may have been in a position to be satisfied that the installation of temporary stops had solved the problem until the motor had been installed and commissioned, once there were difficulties with the motors and that, on a number of occasions the gate had to be manually operated, at that point it was accepted on behalf of Hy-Tec that the company had not properly risk assessed manual operation. The point was made that, during the construction phase, it could not be said that Hy-Tec was put on notice that there was a risk that had not been adequately addressed. In relation to the particulars of charge concerning the inadequacy of informing, training and instructing employees and others in the manual operation of the gate, it was pointed out that MDI did not comply with their contractual obligations in supplying a manual but gave some brief oral instruction about the operation of the gates. MDI did not mention anything to Hy-Tec about the use of stops on the gate. The service record of MDI in relation to the gates was in evidence and demonstrated the continuing involvement of MDI in relation to the operation of the gates but at no time did MDI advise Hy-Tec of any issue about the adequacy of the stops. It was submitted that it was significant that, after drawing attention to the danger of the gate falling again and the need for stops to be installed, MDI ultimately commissioned gates elsewhere in the plant where no stops were provided. Despite attending on an ongoing basis for servicing the gates and knowing the risk of the gate falling without a mechanism such as a stop, during this entire period MDI did not draw that fact to the attention of Hy-Tec.
Conclusions as to Relative Culpability of the Participants
71 It can be seen from the foregoing summary that a considerable amount of time and energy was expended by the defendants in addressing the issue of parity, with each defendant attempting to position itself below a variety of defendants and parties against whom proceedings were not taken to suggest to the Court that their level of culpability was low. The complexity and difficulty of this task is heightened when players of some significance in the events that led to the fatal accident are not the subject of proceedings under the Occupational Health and Safety Act and the Court is, therefore, not in a position to have direct evidence as to their entire participation in the design, manufacture and installation of the gates. That statement does not suggest any criticism of the prosecutor but merely draws attention to the difficulty facing the Court when that situation arises. There is nothing before the Court, for example, to suggest that Hannas or MDI do not continue to trade. The Court would be slow to reach a decision about the criminal culpability of those entities in the absence of a very firm evidentiary base for making those conclusions. A significant policy goal behind the principle of parity is the notion of equal justice and was described in Lowe v The Queen (1984) 154 CLR 600 at 610 by Mason J as being a "fundamental element in any rational and fair system of criminal justice". It would be inconsistent and indeed, contrary, to notions of equal justice and a rational and fair system of criminal justice for the Court to publicly express a view as to the criminal culpability of a corporation or person who has not been heard in the proceedings without being satisfied to a high level that such findings were reasonably open having regard to the nature and extent of the available evidence.
72 In the present proceedings, Hannas and MDI have been the focus of submissions suggesting that they should be placed near or at the apex of responsibility for the risk that attended the manual operation of the western gates at the Mascot plant: even then, SDA submitted that MDI was at a low level of culpability and Hy-Tex submitted that, fundamentally, the designer, SDA, was at fault. In submissions, the prosecutor acknowledged that Hannas, as the overall project manager and for the construction of the gates, "could have acted more safely by carrying out a risk analysis of the drawings received from SDA and Sunstate and ensuring that gate stops were welded on all gate frame, particularly after the incident in November 2002". The role of project manager is dealt with in some detail by Mr Andrew Simpson of SDA. That evidence has not been called into question. In the administration of this part of the Court's jurisdiction, the Court has become familiar with the broad role exercised by a project manager and that understanding is consistent with Mr Simpson's evidence (see WorkCover Authority of New South Wales (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240). It is, of course, open to the parties in making their contractual arrangements to vary or define in some particular way the role of the project manager for a particular project but the general concept encapsulates the notion of having overall responsibility for the co-ordination of the activities of various contractors on the project.
73 The agreement for construction management services between Bonfoal Pty Ltd and Hannas Civil Engineering Pty Ltd was before the Court. Under that contract Hannas was required to provide the services defined in Annexure Pt B being a list of construction management service tasks. A consideration of the list would suggest the performance of an overall project management role as commonly understood but, in particular, in pre-construction that there was a task of advising on the practical implications of proposed drawings and specifications while under the construction phase and Hannas was to perform tasks of formal and informal meetings with the design team and the management systems for quality health, safety and environment. Under cl 9 of the agreement, the construction manager was to satisfy all the legislative requirements necessary to carry out the services and that requirement seems broad enough to encompass requirement of the provisions of occupational health and safety legislation. Again, under Pt B of the agreement, a task of the construction manager dealing with consultant management was the issue of health, safety and the environment.
74 While these matters are not spelt out in detail, they present a picture of Hannas as construction manager/project manager being responsible for occupational health and safety in an overall sense and being responsible for the co-ordination of the design team and drawings and addressing issues as to what might be appropriately and practically added to those drawings. Having regard to that material, broad and imprecise as it is, had Hannas been charged with a breach of the Occupational Health and Safety Act in relation to the fatal accident that occurred in October 2003 at the Mascot site and had either been found guilty or pleaded guilty to that offence, then it is quite possible that Hannas may have been found culpable to a level somewhat above the level of culpability of the other defendants. In the circumstances little more than that can be properly said.
75 The position of MDI is significantly different to that Hannas, not only having no project management role but also not being required to be involved in any design function at an engineering level. A fair reading of the scope of works covering MDI's supply of the motors and associated tasks for the moving of the gates and associated security systems does not indicate that it had a relevant role in checking the design to ensure that stops were present, or having any responsibility for fabricating and installing stops on gates that were designed and manufactured by others. It is significant that, in 2002 when MDI twice raised the danger of lack of stops on the gates, it did not propose that it would arrange for or manufacture and install stops although it identified stops as being necessary. The thrust of its complaint was alerting Hannas to the danger and seeking some assurance that it would be rectified before work continued. It is clear from that context that it did not see itself as having any role in the manufacture or installation of the stops and there is no suggestion that it was ever considered by Hannas, or anyone else, for this task.
76 In submissions the prosecutor did not support those submissions that sought to attribute blame to MDI. The scope of works applicable to MDI specifically excluded the steel gate frame, cladding and support portals and otherwise was of a quite limited nature. It was also pointed out that, in the expert's report, no fault was attributed to MDI. MDI was present on site when an incident occurred and the gate fell and there was a risk to their workers and that risk was brought to the attention of Hannas in November and December 2002. MDI was not asked to deal with the incident and again complained that the matter had not been rectified and was informed that the matter had been attended to. It was submitted that the role of MDI was confined to the operating equipment and that was the extent of its responsibility during its ongoing service attendances. The Court concurs with the thrust of these submissions. If MDI had been charged with a breach of the Occupational Health and Safety Act in relation to the fatal accident involving Ms Maybury and if found guilty of that breach, it is possible that its level of culpability and having regard to all the circumstances, would be lower and possibly considerably lower than that of the present defendants. In light of a submission made on behalf of Hy-Tec, it should be noted that no one else was charged in relation to the operation of the other gates or the failure to have adequate stops or any stops on those gates - MDI cannot, therefore, be legitimately implicated because of the operation of the other gates in the offences concerning the defendants.
77 What then can then be said about the relative culpability of the three defendants? Firstly, Hy-Tec is charged under a different provision and the circumstances relating to the charges of SDA and Lejah focus on different periods. In SDA's case the charge is in relation to design and in Lejah's case, in relation to manufacture and the provision of information. The common thread is that they all had an obligation to consider the manual operation of the gates and the risk that might attend such an occurrence. The Court is unable to accept the submission for SDA that, because it was at the beginning of the process, others behind it should have picked up the risk associated with manual operation: similarly, neither can Hy-Tec make good its position that it came at the end of the line and many others before it should have identified the risk associated with manual operation. All defendants owed a similar obligation to protect against the identified risk. These circumstances do not persuade the Court that, as a result, the culpability of SDA and Lejah are reduced. As previously commented upon, neither SDA nor Lejah have explained how it was that they failed to consider the operation of the gate as required by the Regulation. Hy-Tec had the operation of the gate plant after it was commissioned and was aware that the motor was failing on a regular basis and that manual operation was necessary: it was aware that temporary stops had been installed but caused no investigation of their adequacy. When these matters are considered, the Court is unable to detect any appreciable difference in the culpability of any of the defendants.
78 Deterrence
It is beyond question that general deterrence must form a significant component of the penalty to be imposed in each case. These cases demonstrate that even well resourced and professionally run organisations may omit consideration of very obvious and everyday matters to the detriment of safety. The risk of a heavy gate falling is not totally unique. Kavanagh J in Inspector Vierow v Catholic College Lismore Ltd t/as Trinity Catholic College Lismore [2009] NSWIRComm 128 dealt with the death of a young child in circumstances where a sliding gate weighing approximately 100kgs fell because of an inadequate and inadequately maintained stopper. It is not suggested that the surrounding circumstances are identical to the present cases before the Court but both cases indicate that a simple, everyday object such as a gate, in its operation, unless properly risk assessed, can have the most devastating consequences by being able to fall. In relation to specific deterrence, both SDA and Hy-Tec continue operating and it is appropriate in those circumstances that specific deterrence form a significant element of the penalty although in relation to both SDA and Hy-Tec, the steps taken after the fatal accident are an indication that there is a reduced likelihood of either offending in this way again. The circumstances of Lejah are different although there is little by way of evidence before the Court. The prosecutor has accepted that the Sunstate engineering part of its operation has been sold and appears to be operated by a son of the owners of Lejah. There is evidence before the Court that Mr and Mrs Rea are the only directors and shareholders in Lejah and that Mr Rae is now 80 years old. The prosecutor appears to accept Lejah's submission, namely, that Lejah no longer has employees or carries on business. Although no undertaking was given by counsel on behalf of Lejah that it would not again become involved in the manufacture and fabrication of metal items, it appears that is likely to be the case and the Court accepts the prosecutor's concession that there is little or no role for specific deterrence in relation to the fine to be imposed on Lejah.
Subjective Factors
SDA
79 (i) SDA is a relatively small to medium, professional structural engineering business that has been operating since 1999 and has not previously been found to be in breach of occupational health and safety legislation. This is a good record and SDA is entitled to the leniency afforded a first offender;
(ii) The evidence demonstrates the attention paid to safety as a result of this tragic accident and having regard to the nature of its business, it may reasonably be concluded that the company is unlikely to offend again in this way. Following the accident, SDA reviewed its approach to safety and altered its methods of operation. It is apparent from the submissions put on behalf of SDA that the principal of the company feels keenly the result of being found in breach of occupational health and safety legislation and otherwise considers the company to be operating at the highest level of professional and ethical operations. The evidence supports a finding that SDA is a good corporate citizen, involved with the community and contributing to the community by way of charitable donations and pro bono work. References regarding SDA speak highly of the quality of SDA's engineering services as well as Mr Hadley's professional and ethical approach. Importantly, SDA fully co-operated with the WorkCover Authority during the investigation of the accident. These matters will be taken into account in mitigation of the penalty.
Hy-Tec
(i) proceedings against Hy-Tec were commenced in late March 2008 and the matter appeared in the Court's list on five occasions before not guilty pleas were entered in November 2008, with an estimate of a three-week hearing. There were three more listings before the Court and in early February 2009 the matter was set down for hearing in July and August 2009. In late July 2009, Hy-Tec changed its plea and pleas of guilty were entered to a reduced number of particulars. The prosecutor accepts that, nearly two weeks before those pleas of guilty were announced in Court, the prosecutor had become aware of the change in plea. Those circumstances warrant a consideration of whether or not the Court can accept that proposition despite the prosecutor accepting that an early plea had been entered. The considerations that should attend upon an evaluation of whether or not there had been an early plea have been discussed recently by the President, Boland J, in Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143. In that judgment his Honour canvassed judgments of the Court of Criminal Appeal and their discussion of the principles concerning the availability of a discount in general criminal matters. From those cases his Honour said that, in considering the amount of discount to be given for the utilitarian value of a guilty plea, the Court must have regard to the contribution that the timing of the plea makes to the avoidance of the waste of time and resources of the kind referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 38. The authorities confirm that the discount of 25 per cent should be reserved in the majority of cases where the timing of the plea provides the greatest utilitarian value and in assessing that value, regard was to be had to the complexity of the issues about which evidence would have to be gathered and adduced. Applying those principles to the present matter, it is difficult to conclude that the plea was entered at the earliest available opportunity but that does not conclude the matters to be considered. The defendant entered pleas of guilty to a reduced number of particulars and there is no doubt that the Court was saved considerable time in not having to consider the variety of issues that have arisen in the related proceedings involving the SDA and which occupied some 11 hearing days. In addition, there is no evidence that the prosecutor was led to incur additional costs of substance on the basis of preparing for a contested hearing that became unnecessary once the pleas had been entered. To some extent the likelihood that little further expenditure was incurred will result, in part, from the agreement between the prosecutor and the defendants, Hy-Tec and Lejah, that the sentencing matters should not proceed until after the SDA case on liability had concluded. Having regard to these matters, the Court is satisfied that there was considerable utilitarian value in entering the guilty plea to the extent of warranting a discount of 20 per cent;
(ii) Hy-Tec's status as a first offender also entitles it to the leniency accorded to such a defendant. Hy-Tec's industrial record is to be regarded as a good safety record for a defendant working in a high-risk environment. The evidence called through Mr Tiplady demonstrates general commitment to occupational health and safety as emphasised by the role of Adelaide Brighton in the affairs of the defendant. Hy-Tec conducted a full investigation after the accident and addressed the risk exposed - it conducted a risk assessment of the operation of the gate and then implemented a manual operation procedure for the gate. There is an ongoing review of safety processes through Adelaide Brighton. The evidence also demonstrates that Hy-Tec is a good corporate citizen engaging with its community. The Court accepts and the prosecutor concedes that there was co-operation with WorkCover's investigation but, in particular, the evidence establishes that Hy-Tec was the first of the defendants to publicly accept its responsibility for this breach and conducted itself in the most commendable way before the Coroner, especially in the making of recommendations designed to allow the industry to address the problems that arise from the manual operation of otherwise motorised gates. During the course of the sentencing hearing, Hy-Tec maintained that high level of acceptance of responsibility and frankly spoke about its liability for this tragic accident. Senior officers were present during the sentence hearing, indicating the importance of the proceedings to the company and to be present when counsel expressed, on their behalf, once more the company's regret that this accident occurred. Immediately following the accident, representatives of Hy-Tec also showed concern and financial support was forthcoming for the families of Ms Maybury and Mr Sheath. The Court is left in no doubt that Hy-Tec accepts responsibility for this accident and has demonstrated its contrition. These matters are of considerable importance and will all be taken into account in determining an appropriate penalty;
(iii) as Hy-Tec has been charged with offences under ss 8(1) and 8(2) relating to employees and non-employees, the principle of totality is required to be considered. The prosecutor pointed to the joint judgment of Boland and Walton JJ in Newcastle Wallsend Coal Co Pty Ltd and Ors v Inspector McMartin (2006) 159 IR 121 as laying down the correct approach in sentencing in circumstances where the totality principle arises for consideration. The principle involves taking each of the offences and having regard to all the relevant circumstances, including the objective and subjective factors, arriving at a separate penalty for each offence. It is then open to the sentencing judge to apply the totality principle requiring consideration of the overall criminality involved in the offences and so requires that regard be had to the principle that the defendant is not to be punished more than once for elements that are common to the offences, as well as ensuring the aggregate sentence or penalty is just and appropriate. Once the totality principle had been applied it would then usually be appropriate to fix separate penalties for each offence. Generally stated, these principles are not in contest but it should be noted that Kirby P in Camilleri's Stockfeeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704 stated:
The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it maybe that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.