Inspector Duncan v Bodel's Plumbing Service Pty Ltd

Judgment 1These prosecutions are brought by Inspector Michael Duncan of the WorkCover Authority of New South Wales against Bodel's Plumbing Services Pty Ltd under s 8(1) of the Occupational Health and Safety Act 2000 (the Act) by way of an amended Application for Order. 2It is alleged the defendant, on 5 July 2008, contravened s 8(1) of the Act in that it failed to: by its acts or omissions as particularised below to ensure the health, safety and welfare at work of all its employees, and in particular, Michael Hush contrary to Section 8(1) of the Occupational Health and Safety Act 2000 . In particular: (a) The risk referred to in the charge and in these particulars refers to the risk to people at the premises, including Michael Hush sliding and falling from height to the ground; (b) The defendant failed to ensure that there was an adequate means of fall protection (such as scaffolding erected to an adequate height and extent of roof coverage or the use of harnesses) to prevent employees falling from height; (c) The defendant failed to ensure that a falls arrest device, such as a harness or similar device, was used by Mr Hush whilst he was working .at height to prevent him from falling; (d) The defendant failed to provide adequate instruction or supervision to Mr Hush so that he did not work at height unless suitably erected scaffolding or other suitable fall protection was in place or that he was using harnesses or other suitable falls arrest devices; (e) The defendant failed to undertake an adequate risk assessment that identified the risk and the means by which the risk could be controlled such as by suitably erected scaffolding or by using a harness or other falls arrest device; (f) The defendant failed to devise and maintain a safe system of work for employees undertaking roofing work at the premises. 3The defendant pleads guilty to the charge. 4Mr R Reitano of counsel appeared for the prosecution and Mr A P Joseph of counsel appeared for the defendant. The prosecution relied upon an amended Application for Order, an agreed Statement of Facts, a Factual Inspection Report dated 11 July 2008, 16 mounted colour photographs taken 5 July 2008, a bundle of documents headed by document titled "Formal Instrument of Agreement for the Engagement of Subcontractors", Australia/New Zealand Standard AS/NZS 1576.1 1995 Scaffolding Part 1: General Requirements, WorkCover Code of Practice 1993 Safe Work on Roofs Part 1 - Commercial and Industrial Buildings, WorkCover the Requirements for Scaffolding in NSW Policy Statement Version 3, and a Prior Convictions Report - Bodel's Plumbing Service Pty Limited dated 28 January 2011. 5The defendant relied upon an affidavit of Michael Bodel, Managing Director and Chief Executive Officer of Bodel's Plumbing Service Pty Ltd, sworn 4 February 2011, with attached documentation including a checklist template entitled "Bodels Pluming Service Pty Ltd Checklist - Safe Working on Roofs" and form entitled "Bodels Plumbing Pty Ltd Site Assessment Sheet". 6There was an Agreed Statement of Facts which relevantly reads: 3 At all material times Bodels Plumbing Services Pty Limited [ACN 057 945 712] whose registered office is situated at ASB & Associates, 24 The Esplanade, Wagga Wagga South, New South Wales ( Bodels ): 3.1 was a corporation that undertook the business of plumbing, including roof plumbing. Bodels was incorporated on 4 December 1992. 3.2 had two directors, being Michael Bodel ( Mr Bodel ) and his wife Selina Bodel. Mr Bodel was then, and is now, the Managing Director of Bodels. 4 On 5 July 2008, Bodels employed approximately twenty seven staff, including Mr Hush. Mr Hush was 45 years of age and had worked in the construction industry as a roof plumber for over 20 years. Mr Hush had worked for Bodels previously but had commenced his most recent period of employment on 19 May 2008. Bodels also employed approximately six apprentices. 5 Bodels had been engaged at the Premises by Kell and Rigby ACT Pty Ltd [ACN 002 602 262] ( Kell and Rigby ) to install the roof system, including safety mesh, insulation, metal sheeting, guttering and down pipes. Kell and Rigby was the principal contractor for the construction of the Aldi supermarket store at the Premises. The construction work commenced in March 2008. The construction was completed with handover to Aldi Stores in October 2008. The overall construction contract between Kell and Rigby and Aldi Stores was valued at $3,817,800.00. The building under construction was to be used as a supermarket. 6 The agreed price payable to Bodels under the contract between Kell and Rigby and Bodels was $126,005.00, including GST. The contract between Kell and Rigby and Bodels was a complex and detailed written one, which, with annexures, was 106 pages long. The contract provided that Bodels would supply and install the roofing, insulation, wall cladding and downpipe package at the Premises as required to complete the construction project in accordance with all specifications and relevant requirements. 7 There was a detailed scope of works for the construction of a single storey supermarket facility and civil works including a car park for 93 cars, retaining walls, landscaping and road works. 8 The contract between Kell and Rigby and Bodels provided that the performance of the installation work by Bodels would be done as instructed by Kell and Rigby's site foreman and according to Kell and Rigby's construction program as amended from time to time. On 5 July 2008, Kell and Rigby had a number of employees, two of whom had worked at the Premises that day. At all material times Kell and Rigby's management team for the project at the Premises included Michael Ensor ( Mr Ensor ), Business Manager, Ted Hanlon ( Mr Hanlon ), the Project manager, Peter Tarjavaara ( Mr Tarjavaara ), the Site Foreman and David Butler ( Mr Butler ), Leading Hand Labourer. On the morning of 5 July 2008 and at the time of the incident the only member of Kell and Rigby's team present at the Premises was Mr Butler. There was no first aid assistant present at the time. Kell and Rigby opened the site six days per week and had intended for the site to be opened on Saturday 5 July 2008. Mr Tarjavaara had arranged to have the weekend off work and return to his home in Wollongong for that weekend. Prior to leaving the site late in the afternoon on Friday 4 July 2008, Mr Tarjavaara had discussed with Mr Hanlon the issue of the site supervisor and it was agreed to ask Mr Butler to supervise the site on 5 July 2008. Mr Butler agreed but was not provided with any specific information or instruction either from Mr Hanlon or Mr Tarjavaara regarding what his supervisory role required nor was he told who would be on site. Mr Butler was provided with keys to enable him to open up the site and a Kell and Rigby mobile phone number in case of emergency. A discussion about emergency procedures took place between Mr Butler and Mr Hanlon. Mr Butler made his own enquiries and after a discussion with Graeme Pendrick, Bodels contracted site supervisor ( Mr G. Pendrick ), thereby became aware that Bodels was to work on the site on the Saturday. A copy of the contract between Kell and Rigby and Bodels is Annexure A. 9 On 18 June 2008, Mr Tarjavaara inducted Mr Hush to the site. The induction covered topics such as amenities, emergency procedures and work procedures and some other matters. Mr Hush received no other safety inductions between 18 June 2008 and the date of the incident on 5 July 2008. The Premises 10 On 11 July 2008 Inspector Duncan prepared a Factual Inspection Report in respect of his attendance at the premises on 5 July 2008. A copy of the Factual Inspection Report is Annexure B. On 5 July 2008 Inspector Duncan took 16 colour photographs of the premises. A copy of the photos is Annexure C 11 At the time of the incident the building under construction was single storey with brickwork to the external walls and a steel roof frame with partial steel colourbond roofing in position. The roof was pitched with gable ends. The floor was concrete. The building was rectangular in shape with the largest sides running east to west. 12 At the time of the incident there was steel scaffolding erected to the perimeter of the building around all four sides. The scaffolding to the eastern end of the building was not complete with no scaffolding erected to the southern half of the face. The scaffold along the north and south sides was approximately 1.2 metres wide comprising five steel planks. The working depth of the scaffold was approximately 1.6 metres below the external edge of the roof. There was no roof edge guard rail in position. The gable ends (the west and east ends) had step scaffolding to accommodate the pitch of the roof. Sections of this scaffold were lower than the roof edge. The inside face of the scaffold (the face closest to the building) had no hand rails installed along the entirety of its length. The height from the working deck to the ground level between the scaffold and the building was approximately 3.9 metres. The height from the working deck to the concrete slab of the building was approximately 2.15 metres. On the southern scaffold there was a two-plank wide hop up deck installed 500 millimetres above the working deck and installed directly above the working deck and attached to the external standards. There was ladder access onto the scaffold at the western end and northern end of the building. At the time of inspecting the incident scene, at the eastern end of the southern scaffold in the last bay, the end hop up plank was not sealed into the hop up bracket. There was a transom on the very end of the scaffold and this was fastened to the external standard only. 13 At the time of the incident the pitch of the roof was 17 degrees. The roof was designed with an upper and lower section with both levels running down each length of the pitch. Approximately half way down its length, the upper roof stepped down approximately 150 millimetres to the lower section. The pitch of both the upper and lower roof levels was the same. The roof sheets had been installed to the northern side of the roof. On the southern side of the roof the upper section of roof sheets had not been installed except for the single sheet on which Mr Hush slipped. On the lower section of roof approximately three quarters of the roof sheets had been installed commencing from the eastern end and working towards the western end. There were two stacks of roof sheeting lying on the northern section of roof overhanging the ridge. There was a length of steel flashing installed to the step between the two levels of roof at the eastern end of the southern roof. 14 There was safety mesh installed across the entire roof including the section of roof that did not yet have roof sheets. However, the safety mesh was not correctly installed. Every second longitudinal wire in support of the safety mesh across the entire roof had been cut off. This included the longitudinal wire supporting the safety mesh under the existing roof sheeting. The Incident 15 No rain was reported overnight or on the morning of the incident. However, the incident occurred during winter and the overnight temperature was reported as 1.3 degrees. By 9am that day the temperature had reached 7.5 degrees. 16 On 5 July 2008, Mr G. Pendrick was at the Premises. Karl Pendrick ( Mr K. Pendrick ), a 17 year old school student was also working at the Premises on that day. The building's steel structure was approximately 80% complete on that day. Apart from Mr G. Pendrick and Mr K. Pendrick and Mr Hush, no other workers of Bodels were working at the Premises that day. 17 After a brief discussion between Messrs Pendrick and Hush work commenced. On 5 July 2008, Mr Hush was the first person to access the roof that morning. The roof sheets had already been placed on the roof the previous day. Mr Hush accessed the roof from scaffold erected at the eastern edge of the roof. He was working with Mr K. Pendrick who had also accessed the roof but from the northern scaffold. Neither of them were wearing harnesses or any other falls protection device. As Mr Hush stepped onto the roof near its apex at approximately 8:20 am he slipped and then slid down the eastern edge of the roof then fell off the roof at its south-eastern corner. 18 It is not known how many steps Mr Hush took prior to his foot slipping and causing him to land on his back. Once he landed on his back he began to slide along the roof immediately. As the roof system was designed in two sections or levels, Mr Hush slid on his back down the upper level and landed on the stepped lower level of the roof. As the lower level roof had been fully sheeted Mr Hush continued to slide down the lower level until he came to the roof's edge. Because there was no edge protection installed and because he was not wearing any fall arrest device, Mr Hush fell off the roof altogether. As Mr Hush was concerned that he might slide through the scaffold's framework he intentionally positioned his feet to make contact with the horizontal ledges that had been installed to the rear face of the scaffold. Mr Hush's legs took the impact of the fall which kept him within the confines of the scaffold. As he continued to fall his back made contact with the edge of the two board scaffold deck known as a "hop up" that had been positioned directly above the main working deck and about 1.1 metres above the roof line. Mr Hush bounced off the "hop up" deck and fell another 500 millimetres onto the main working deck which had only three of its five metal planks exposed due to the hop up deck above. Mr Hush's fall was not arrested at this point as the main working deck was not fitted with any guard rails or kick boards to its inside face. Mr Hush fell from the scaffold altogether until he hit heavily on the ground floor concrete slab in a room identified on the construction drawings as the lunch or staff room. Mr Hush's body was positioned so that his head and torso overhung the slab edge with his hips and legs on the slab proper. 19 There was steel scaffolding erected around the building's perimeter. However the height of the scaffold deck was too low to fully arrest the fall of Mr Hush. Furthermore, there was a section of the roof on the eastern face at the southern corner near the point at which Mr Hush fell, which had no scaffolding. The working deck of the scaffolding that was erected was without inside hand railing, that is without a top rail, mid rail or kick board. Further, from the start of the roof works project to the time of the incident, around the entire roof area there was no hand rail installed. If the scaffold had been at the correct height (i.e. approximately 500mm below the roof line), it would have arrested the fall of Mr Hush and stopped him from falling to the ground. 20 Kell & Rigby engaged a contractor (Branscaff) to erect the scaffolding. After Branscaff had erected scaffolding on the southern side of the building, the scaffold was approximately 1.6 metres below the roof line on the southern side. In or about June 2008, and before any roofing work had been performed by employees of the defendant, Mr Bodel spoke to Mr Hanlon from Kell & Rigby about the gap between the scaffolding and the roof line. A request was made for the scaffold to be raised but this did not occur. 21 Subsequently, on the first day that work was to be performed, Mr Pendrick spoke to representatives of Kell and Rigby asking them to raise the scaffold but they did not do so before roofing work commenced. 22 The result of the above set up was that after Mr Hush slipped, he continued to fall without adequate protection or fall arrest in place. Mr Hush fell from the edge of the roof to the ground floor concrete slab. The vertical distance from the roof edge to the concrete slab was approximately 3.8 metres. The distance from the concrete slab to the unsealed laneway was approximately 1.7 metres. Therefore the potential distance over which Mr Hush could have fallen from the roof edge to the unsealed laneway was approximately 5.5 metres. 23 After the incident Mr Hush was taken by ambulance to Young Base Hospital then transferred to Canberra Hospital. He sustained a broken femur that required surgery to insert a metal rod and subsequent procedures to adjust the metal support and bone grafts. He also sustained five broken ribs and was diagnosed with a protruding disc in his lower back. Mr Hush had returned to work on suitable duties by July 2009. The Investigation 24 Inspector Michael Duncan ( Inspector ) undertook a formal investigation into the incident after there had been an initial response from WorkCover following the incident. Photographs had already been obtained of the Premises, prohibition and improvement notices had been issued and an initial incident investigation report had been prepared. 25 On 5 July 2008, Bodels was issued with a prohibition notice which directed it to cease work on the roof immediately because of the immediate risk to people of falling through safety mesh as the mesh had not been correctly attached to the end purlins. 26 There was an occupational health and safety management system put in place by Kell and Rigby at the Premises which included the project management plan, the site plan and the site rules. The site rules explained all the critical aspects of the site plan and was intended primarily for contractors and provided information relating to the establishment of the site and detailed how specific work practices such as the use of ladders, scaffolds and so on would be implemented. 27 Bodels did not have its own documented occupational health and safety management system, in place at the Premises. Bodels relied on visual risk assessments that were undertaken by its principal, Mr Bodel, some days before work commenced at the Premises. Bodels used a safe work method statement ( SWMS ). It detailed specific work procedures that had been identified during Mr Bodel's visual risk assessment. Mr Bodel relied upon his site supervisors for each job to ensure that the SWMS was complied with appropriately and that safety was not compromised. In preparing the SWMS, Mr Bodel did not consult with any of the workers (including Mr Hush) who would be performing work at the site. The SWMS was prepared before many of the risks at the site had eventuated because the construction had not progressed sufficiently when Mr Bodel undertook his inspection. It did not account for changes to the site nor the consequences of the prevailing weather conditions (such as frost or dew). 28 The SWMS identified the work activities which were to be completed at the site. Other than identifying wind as being a hazard, the SWMS failed to address the issue of weather conditions that might be experienced in the area and failed to address the wearing of harnesses in areas where appropriate fall protection was not provided. The SWMS did address the issue of Bodels installing hand railing such as roof edge protection but as this was never installed the SWMS did not reflect the changing work environment at the site. The SWMS made no reference to managing the risks associated with slippery roof surfaces even though these are a recognised industry hazard and slippery roof surfaces were an existing hazard at the material time at the Premises. 29 Kell and Rigby did not have a safety committee on the site but safety walks, tool box meetings and weekly safety audits were completed by Mr Tarjavaara. Tool box meetings were not conducted regularly and the last tool box meeting before the date of the incident had been conducted on 27 May 2008. The safety audits conducted by Mr Tarjavaara failed to disclose that the safety measures implemented for roof safety were ineffective. In particular, they failed to identify that there was no roof edge protection and that the scaffold was 1.6 metres below the eaves line. 30 Mr Butler was not an experienced supervisor but was the only Kell and Rigby supervisor on site at he time of the incident. He was not given any instruction or information about the trades that were to be on site or the work they were to conduct on the day of the incident. 31 Bodels had no system established to monitor or audit its safety performance at the Premises. It followed the safety procedures that were adopted by Kell and Rigby and was reliant on its site supervisor, Mr G. Pendrick, to ensure that Bodels adhered to the terms of its roofing contract and the safety of its workers. 32 As a result of the Inspector's investigation the Inspector formed the opinion that the Premises were unsafe because of the failure to adequately protect employees working on the roof from falling from height. The Inspector formed the opinion that there was a risk at the site of people such as Mr Hush, Mr G. Pendrick and Mr K. Pendrick who were required to work at height, or who were in any event working at height, sliding or falling from the roof to the ground. The Inspector formed the opinion that people at the Premises were exposed to serious risks of injury as a result of the possibility that they might fall from height a distance of up to 5.5 metres. The Inspector considered that the risk was very obvious. It is also a risk that is well known and notorious in the building and construction industry. 33 As a result of the Inspector's investigation the Inspector formed the opinion that Kell and Rigby and Bodels should have ensured that there was an adequate means of fall protection by way of suitably erected scaffolding, guard rails or hand rails or that other suitable fall protection systems were in place such as harnesses attached to a static line or anchor point so as to ensure the Premises were safe and without risk to Mr Hush. The agreement between Bodels and Kell and Rigby expressly provided for a level of responsibility on Bodels' part for hand railing. 34 Bodels and Kell and Rigby did not implement systems to prevent falls from heights that are well known in the building industry. These measures include the use of fall protection such as properly erected scaffolding or kickboards as well as ensuring that Bodels' employees used the harness that were provided to them. These are well known means of preventing falls. None of these were put in place at the Premises at the material time. 35 The measures referred to above, together with relevant instruction about the risk and the use of these measures accompanied by a proper risk assessment would have ensured that people working at height at the site were not exposed to the risk. The Inspector's investigation disclosed that no relevant risk assessment had been undertaken and there was insufficient instruction and supervision provided by Bodels to manage the risk. Steps Taken After the Incident 36 After the incident, Kell and Rigby, following the issuing of improvement and prohibition notices, gave directions to improve safety at the Premises. These directions included that the height of the scaffold deck be increased by lifting the five board working deck on both the southern and northern scaffolds up to the underside of the eaves. In addition, the directions included the installation of a hop-up deck internally, to close the gap to where the building's southern face would be erected. This method created a seven board working deck. Brick guards or infill panels were installed to the external standards at the height of the working deck protecting the roofline, which had the capacity to arrest a fall by any person sliding off the roof surface. Kell and Rigby directed that safety mesh be properly tied and that people not go onto the roof of the Premises under construction if the roof was frosty or wet 37 After the incident, Bodels took action to address the inadequacies in relation to the installation of the safety mesh by ensuring that all of the wires in support of the safety mesh were tied and secured. No other action was taken by Bodels after the incident in respect of improving roof safety at the Premises. Bodels has no prior convictions. A copy of the Prior Convictions Report for Bodels is Annexure D. Mr Bodel has no prior convictions. A copy of the Prior Convictions Report for Mr Bodel is Annexure E. Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104, correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). 10The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' 11Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): ... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected... 13Bodel's employee, Mr Hush, was on the slippery roof with no harness attached. The scaffold provided by Kell & Rigby, the head contractor, was erected below the roof line. The scaffold had no hand rail and, although required under the contract, Mr Bodel had requested and was permitted by Kell & Rigby to not erect a roof guard rail. The prosecutor acknowledges that, before any roof work commenced, Mr Bodel spoke to a Kell & Rigby supervisor on site and requested the scaffold be raised. Bodel's senior employee also recalls that, on the first day at work, he spoke to the Kell & Rigby supervisor and asked for the scaffold to be raised. 14The photographs of the scaffold at the site clearly reveal there was a chasm between the level of the scaffold and height of the roof allowing open access to a six metre drop to the ground. There was a risk of a fall to the concrete ground floor for any employee on the roof. Mr Bodel failed to properly supervise his three employees, on 5 July 2008, by requiring them to go up onto what was a slippery roof. They worked with no fall protection by way of harness (although harnesses were on site), no safety rails on the roof (or the scaffold) and were without proper instruction and supervision. There was in effect no safe system of work maintained. Mr Hush fell from the slippery roof, hit the scaffold, then fell down through the chasm. The other two employees were exposed to the same risk. 15The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed by the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ...reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. In the circumstance there was a foreseeable element to the breach which makes it more serious. While the defendant, through Mr Bodel (the controlling mind of the corporation), identified the fault in the placement of the scaffold, he failed to ensure the risk of a fall between the scaffold and the roof line was eliminated. The defendant corporation, by not ensuring the scaffold was adjusted, the roof rails connected and harness was used, failed to ensure the necessary safety features were in place to provide a safe work environment for its employees. 16The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited ( Industrial Relations Commission of NSW in Court Session, Schmidt J, 25 February 1994, unreported)). There were known steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practicable. 17A prosecution has been considered against the head contractor, Kell and Rigby (ACT) Pty Ltd, ( Inspector Duncan v Kell and Rigby (ACT) Pty Ltd [2011] NSWIRComm 25. In that matter, the Court said at [25]: In relation to sentencing, there is a need for consistency in the sentencing of offenders for "related offences" ( Warman International Limited v WorkCover New South Wales (1998) 80 IR 326). Differences in sentencing outcomes, which reflect differences in the circumstances between offenders charged with different but "related" offences, do not offend against the principle of consistency. Factors such as the differing roles of defendants on site can lead to differing levels of criminality. The sentencing must then reflect in differing penalties (see Signanto v The Queen (1998) 194 CLR 656 at [670]). There is therefore a question as to the contribution of the defendant to the risk identified: that is, the risk of falling from a height . . . 18I adopt this reasoning and find both the head contractor and the defendant did, by their failures, contribute equally to the risk. However, I do not accept that the certification of the scaffold by another sub-contractor to the head contractor had any contribution or affect on the actions of the defendant. There will therefore be no allowance for a contribution to the risk brought about by the acts of a corporation which certified as to the safety of the scaffold to Kell and Rigby. This defendant, on the evidence, had no knowledge of that certification. 19The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 20The company continues to operate as a roofing and plumbing business and employs up to 22 people so an element of specific deterrence is included. General deterrence is also an element of the penalty for this offence. What this incident reveals is there was an obvious risk - employees could fall from a height through the open chasm between the roof and the scaffold. Yet planned safety procedures prepared and adopted by this defendant were not implemented on site. Once more the Court must reiterate to the tradespersons operating in the construction industry that carefully prepared safe work methods must be implemented. Any variation made on site to the existing systems must be again risk assessed and tested against the objective of ensuring the safety of employees at worksites. 21Mr Bodel opined: 7 Before the accident I had in place a risk assessment safety process which involved I personally inspecting the plans, checking the site and discussing with the builder the safety systems which would need to be in place such as scaffolding and railings. Every job is different and involves the use of different equipment. I undertook the same process with the ALDI store project. 8 I attended the site in June 2008 and spoke to Ted Hanlon from Kell & Rigby. The construction was a single-storey building to be used as a supermarket. Even though it was a single-storey construction it was quite high at the back where the site had been built up. It was quite difficult also to erect a handrail because of the steel riggers that projected from the end of the trusses. A decision was made that Kell & Rigby, the builder who had installed the scaffolding would arrange to lift up its height as it was inadequate. I left the site with the expectation that the builder would correct the height of the scaffolding prior to work commencing. 9 The employees that were to perform work on the site were Michael Hush (the injured), Graham Pendrick, Brian Hughes and Carl Pendrick. Graham and Brian had between 25-30 years experience doing roofing work. Michael Hush had over 15 years experience undertaking roofing work. I provided harnesses which were available on site. All of my employees are required to undertake, at my expense, a Safety Work on Heights Course which amongst other things instructs them in the need to use harnesses on roofs. It is my belief that all the above employees had undertaken that course. 22Such evidence does not satisfy that there was in place a rigorous site safety safe work system and work methods. Mr Bodel, before the work began, required the scaffold to be raised, as did one of his employees, but there was a failure to ensure it was done. His employees had worked on this site for some two to three weeks and were exposed to the risk for that period (although the Court, for the purpose of penalty, notes the prosecution is directed to the failure to act on 5 July 2008). 23It appears Mr Bodel had no written basic safe work procedures in place and relied upon adopting those of the head contractor. There was only a site visit by him to perform a risk assessment on site and no follow up when a risk, as to the level of the scaffold, was visually identified by him. He supplied, but clearly did not ensure his employees complied with the necessary use of, the harness. He opines now: 15 Since the accident I have improved the company's occupational health and safety risk assessment systems. I now utilise a check list which I have taken from the Workcover information provided to me. The check list has to be completed and signed by both the employee and the project manager before commencement of each job. If the work involves working at heights like a roof, the company uses a roof hazard check list and a roof access certificate which has to be checked off and signed before access to each roof. I annex and mark "A" and "B" respectively Check-Safe Working on Roofs and Site Assessment Sheet. 16 I have also improved the safety equipment by purchasing new up-to-date handrailing, access towers, mobile scaffolding, temporary anchor systems and additional harnesses. I have also sourced out a company, The Building Supply Company based in Wagga, Albury and Canberra which hires out engineered design handrailing systems to suit difficult commercial and industrial site installations. When required the Defendant hires out equipment which it does not own to suit difficult construction sites. 24Further documentary evidence was required of the new safe work systems in place since this incident. Mr Bodel has provided to the Court evidence of the corporation's systems: his roofers are required to undertake the safe working at heights course; attend once a month at meetings directed to safe work methods; a training register is kept by the corporation; there is a site handbook empowering his supervisors to identify and implement safe work procedures; check lists for each site's work are prepared and require completion. 25I am persuaded that the corporation is now aware of its obligation to ensure a safe work environment for its employees. It can, and must, work in conjunction with the head contractor but understands as the employer it carries, under the Act, the obligation to ensure its employees' safety. 26It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [56]: ...it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 27The defendant, since 1992, has provided significant work within country areas in New South Wales from Tumut to Wagga Wagga, Cootamundra and Young. The company has approximately 12 projects proceeding at any one time. The company is a small company owned by Mr Bodel and his wife. There is no application for any consideration as to its pecuniary status but I do accept it has not the asset base of a major corporation. Nonetheless, the penalty must reflect the seriousness of the offence. 28Mr Bodel has expressed remorse through his care for his employee, Mr Hush. After the incident Mr Hush was taken by ambulance to Young Base Hospital then transferred to Canberra Hospital. He sustained a broken femur that required surgery to insert a metal rod and subsequent procedures to adjust the metal support and bone grafts. He also sustained five broken ribs and was diagnosed with a protruding disc in his lower back. Mr Hush had returned to work with the defendant and suitable duties were provided to him from July 2009. 29The defendant has also demonstrated contrition for the offence (s 21A(3) Crimes (Sentencing Procedure) Act ) through his plea of guilty. However, as was said by Boland J (President of the Industrial Relations Commission of New South Wales) in Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). I accept the defendant has accepted responsibility for its actions and has cared for Mr Hush. 30I also accept the defendant has co-operated with the prosecutor. Given the amendments to the application for order, the plea is considered to be an early plea ( Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 at [33]) and attracts a discount of 25 percent. Given the defendant has operated since 1992 with no prior convictions, the maximum penalty is $550,000. The above record proves the defendant corporation has a fine industrial record. 31The principle of parity is relevant in this consideration in the circumstances. The Court must weigh up the seriousness of the risk and the different circumstance of each defendant who faces a breach of the Occupational Health and Safety Act 2000 arising from the same incident. There must be equal justice between the parties. The parity principle was stated by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at (301-303) as follows: ...The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for me [12]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [13]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [14], recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance" [15]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. ... 32It is appropriate, therefore, for the Court to adopt the approach taken by the Full Bench in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 (at 341) where the Full Bench referred to the principles stated by Mason J in Lowe v R (1984) 154 CLR 606 (at 610) as follows: Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 33The other defendant, Kell & Rigby, has been prosecuted and fined $110,000. Although I have found equal liability for the objective seriousness of the offence, in considering the principle of parity this defendant, because of the mitigating elements of the offence including its financial care of its employee and industrial record, will be given a lesser penalty. 34I find the defendant guilty. Notwithstanding the equal liability in this matter with the head contractor, penalty will reflect the differing circumstance of this defendant from Kell and Rigby. The defendant is fined the sum of $70,000 with a moiety to the WorkCover Authority. The defendant shall pay the costs of the prosecutor as agreed or assessed. Orders 35The Court makes the following orders: