[13] This definition would appear to fit the activity performed by the two employees, although without the added aspects of pre-planning and controlled methods or procedures. The detailed and comprehensive requirements set out in the Standard underscore the importance and necessity of ensuring the safety of workers performing demolition work. The failure of the respondents to have in place any substantial systems of work created an obvious risk to safety.
12 The definition of demolition contained in the Standard also fits the activities being performed by Mr Johnson on the day of the s 8(1) offences, namely the removal of panel roof sheeting by hand, but, without the all important components of pre-planning and controlled methods or procedures. I have already observed in relation to the present circumstances that no procedures of any kind were devised or developed by the first defendant in order that the task assigned to Mr Johnson and others would and could be performed safely. This failure created an obvious and serious risk to safety.
13 In the absence of a system or procedure to facilitate the safe undertaking of the work, the non-provision of fall protection and, in the absence of any other form of instruction, training, information or supervision, the risk to safety, that is, the risk of falling from heights, was also reasonably foreseeable. This is even more apparent in the context of the nature of the work being undertaken by Mr Johnson at the time which involved working from a height in excess of 2.5 metres removing roofing sheets. It is also relevant that Mr Johnson had no qualifications in the type of work he was performing. Nor can I accord much weight to the fact that Mr Johnson supposedly had some experience in the demolition industry since the Agreed Statement of Facts merely asserts that fact without further expansion and there was no other evidence adduced before me on the point.
14 The fact that the risk to safety was reasonably foreseeable renders the offence more serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81], [82].
15 Deterrence is also an important factor in the sentencing process particularly as here where the factual background involves risks to safety existing within the demolition industry. As already noted the industry is considered highly specialised and potentially dangerous. Detailed and comprehensive Codes and Standards have therefore been formulated in order to ensure that the risks inherent in the industry are obviated. Any exposure of such risks to workers or other personnel should be avoided and employers must be made aware of the literature and other information designed to ensure worker safety within the industry and the importance of implementing the appropriate measures to ensure workers can complete their work safely without fear of injuries.
16 Specific deterrence is also important. The first and second defendants continue to operate in their particular field of industry with part of the undertaking of the first defendant involving demolition work. Notwithstanding the safety measures implemented by the defendants (an issue which I will discuss shortly) after 7 March 2003, specific deterrence remains in the circumstances, an important consideration: see Capral Aluminium at [77].
17 Another factor which heightens the objective seriousness of the offences is the availability of relatively simple measures in order to obviate the risk. The most obvious of these measures would have been to provide Mr Johnson with a safety harness when he was working on the roof. According to the evidence such a fall protection device was available for use at the worksite. Alternatively, scaffolding was apparently available for the use of the workers but Mr Johnson was not instructed to use it.
18 The potential or likely consequences of the defendant's failures I find could have been worse than the actual consequences which nevertheless resulted in quite serious injuries requiring hospitalisation for seven days. Mr Johnson fell from the second storey roof to the floor of the first storey, a distance of some 2.5 metres. The seriousness of the likely consequences which results from a breach of s 8(1) of the 2000 Act is also relevant to the Court's assessment of the seriousness of the risk. Given my finding concerning the potential consequences the risk to safety was a very serous one: see WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44; Maddaford v CSR Limited and Mulgoa Quarries [2004] NSWIRComm 337 at [23].
19 The defendants' legal representative, Mr Stanton of counsel, relied on a written submission that the first defendant did have in place a safety system at the time of the offences. This system included the use of a helmet by Mr Johnson while working on the roof and the availability at the worksite of a safety harness. In my view however such matters do little to mitigate the otherwise seriousness of the offences. First, the absence of a safe system of work was one of the particulars of the offences under s 8(1) to which the defendants have pleaded guilty. Secondly, measures in existence at the time of the offences which included the availability of a safety harness and the use of scaffolding were never implemented. This is the crucial step which transforms a system of work with little or no utility (because it exists on paper only) to a system that is developed and then specifically brought to the attention of workers who then receive appropriate direction so that the work is performed safely. The first defendant's system, such as it was, was clearly deficient and existed only on paper with no attempt at all (except for providing Mr Johnson with a helmet which I will take into account in the defendants' favour) to take the crucial next step which was to bring it to the attention of the workers.
20 Turning to the issue of respective culpabilities between the two defendants the evidence appears to be that the second defendant is one of two directors of the first defendant. The other director is Mr Khalil who was also on the day of the offences, the site supervisor. The second defendant was at that time the managing director of the first defendant and was also at the site on the day of the offences. The second defendant has conceded through his counsel in written submissions that he had a significant role in the decision making and general running of the business activities of the first defendant. Nevertheless, the second defendant was one of two working directors and it cannot be assumed that the second defendant made all the crucial decisions, relevantly here in relation to safety matters, to the exclusion of others, notably Mr Khalil, the other director. Based on this material I find that the level of responsibility and control of the day to day operations of the first defendant by the second defendant was of a high degree, although he was not the sole director and obviously not the only director involved in operational matters at the worksite. Mr Khalil also had a substantial role to play as site supervisor. Taking all these matters into consideration I assess the second defendant's culpability as somewhat less than that of the first defendant: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at [38].
21 A further feature which is relied upon by the prosecutor as a circumstance of aggravation concerns the events after Mr Johnson's fall from the roof. In the applications for order this circumstance is particularised as a failure to provide first aid to Mr Johnson after his accident. Ms Lowson in oral submissions described the significance of this particular in terms of providing evidence of delay in the rendering of assistance and in attending to Mr Johnson's injuries as well as revealing a failure to have in place a system for the provision of first aid. All these matters in my view provide evidence of the seriousness of the offences and demonstrate Mr Johnson's exposure to further injuries by reason of the delay. Mr Johnson was left unattended for some fifteen minutes after he fell from the roof. In addition to starkly demonstrating the complete absence of any supervision, as I earlier noted, the incident also suggests that in the absence of attention and because of the delay, Mr Johnson's injuries could have been exacerbated. It is this latter factor which operates as a factor of aggravation and accordingly it will be taken into account in determining the appropriate penalty.
22 The Court has been informed that neither defendant has any prior convictions. The maximum penalty therefore for the offence under s8(1) alleged against the first defendant is $550,000, and against the second defendant (by operation of s 26(1)) is $55,000.
23 I take into account on sentence the fact that neither defendant has any prior convictions. This entitles them to leniency normally extended to an offender who is not otherwise adversely recorded.
24 Both defendants have also entered pleas of guilty to the charges under s 8(1) and ss 8(1) and 26(1) of the 2000 Act. I do not understand the prosecutor to dispute that the pleas were entered at an early stage. Both defendants are therefore entitled to a discount of their sentences in accordance with the principles outlined in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104.
25 I consider an appropriate discount for the utilitarian value of the pleas is 25 percent.
26 The prosecutor does contend in relation to the pleas of guilty that they were entered in circumstances where the prosecution case was strong. This means that the extent of leniency otherwise available in recognition of contrition shown by the defendants by pleading guilty may have less weight and the discount on sentence may be correspondingly reduced. The defendants concede through their counsel in written submissions that findings of guilt "would have been most likely". I take this as a concession that the prosecution cases were strong. It follows that the prosecutor's contention is made good and the discount on sentence will be reduced accordingly.
27 I also take into account in the defendants' favour the impressive number of procedures and instructions which the first defendant has developed and implemented following the commission of the offences. Since the date of the offences, for example, all the first defendant's workers have completed their first aid certificates. The first defendant also has a first aid officer, Mr Succar who holds appropriate certification. In addition, all appropriate personnel now have Demolition Supervisor 1 Certificates. As confirmation of the first defendant's resolve to improve on matters of safety the second defendant's affidavit attaches copies of various work method statements for the demolition works at the worksite the subject of the offences as well as a Project Specific Safety and Injury Management Plan for another company under which the first defendant operated as the principal contractor. The first defendant also now utilises safety harnesses for workers working on erected scaffolds.
28 The defendants have also expressed sincere regret for the incident. The second defendant in particular relies on his inexperience in matters of management and in matters of safety specifically. Both defendants also cooperated fully with WorkCover in relation to all investigations and inquiries undertaken in relation to the offences. These personal factors will be taken into account in the defendants' favour in the assessment of penalty.
Section 86(1)(b) offences