Inspector Duncan v Kell and Rigby

Judgment 1This prosecution is brought by Inspector Michael Duncan of the WorkCover Authority of New South Wales against Kell and Rigby (ACT) Pty Limited ("the defendant") (" Kell & Rigby" ) under s 10(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 10(1) of the Act in that it failed to: by its acts or omissions particularised below to ensure that the premises, used by people as a place of work, were safe and without risk to health of persons and in particular Michael Hush, Graeme Pendrick and Karl Pendrick contrary to Section 10(1) of the Occupational Health and Safety Act 2000. In particular: (a) At all material times the defendant had control or limited control of the premises by reason of it being the principal contractor for the construction of the supermarket store. (b) At all material times there were people working at the premises who were not the defendant's employees. These people included Michael Hush, Graeme Pendrick and Karl Pendrick. (c) At all material times the defendant was in the business, trade or undertaking of constructing commercial and like premises. (d) The 'risk' referred to in these particulars and in the charge refers to the risk of persons working at the site, including Michael Hush, Graeme Pendrick and Karl Pendrick falling from height to the ground. (e) The 'work' referred to in these particulars and in the charge refers to the work of installing sheets of roofing at the site. (f) The defendant failed to supervise adequately the project in that it (a) failed to ensure the contractual obligations relating to the installation of roof guard rail was undertaken by Bodel's Plumbing Service Pty Limited; and (b) failed to ensure that people working at height did not undertake the work unless suitably erected scaffolding was in place. As a result of the defendant's failures, Michael Hush, was placed at risk of injury and was injured. 3The defendant pleads guilty to the charge. 4Mr R Reitano of counsel appeared for the prosecution and Ms P E McDonald SC 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 Requirements for Scaffolding in NSW Policy Statement Version 3 and a Prior Convictions Report re Kell & Rigby ACT Pty Limited. 5The defendant relied upon an affidavit of Michael Ensor, Business Manager for Kell & Rigby, sworn 8 February 2011, with significant attached documentation relating to the existing system of work and the revised system of work of the corporation after the incident. The defendant also tendered a WorkCover statement given by Graeme Pendrick who was on site on the date of the offence. 6There was an Agreed Statement of Facts which relevantly reads: 3 At all material times Kell and Rigby (ACT) Pty Limited [ACN 002 602 262] ( Kell and Rigby ) was a corporation that undertook building and construction work. Kell and Rigby was formerly known as North Strathfield Properties Pty Ltd (ACN 002 602 262). This company was incorporated on 12 May 1983 and on 1 May 2007 changed its name to Kell & Rigby. 4 At all material times Kell and Rigby had control or limited control of the Premises by reason of it being the principal contractor for the construction of the Supermarket store. 5 Kell and Rigby was engaged as the principal contractor for the construction of an ALDI Supermarket store on the Premises. Kell and Rigby engaged Bodels Plumbing Service Pty Ltd [ACN 057 945 712] ( Bodels ) to install the roof system on the site including safety mesh, insulation, metal sheeting, guttering and down pipes and a safety hand railing system. Kell and Rigby also engaged Branscaff to erect permitter scaffolding in accordance with Australian standards. 6 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. 7 The agreed price payable to Bodels under the contract between Kell and Rigby and Bodels was $126,005.00 including GST. 8 The contract, at page 11, included a table of requirements that Bodels were required to undertake. Item 6 of the table stated that the subcontractor would provide ' All necessary safety railing/scaffolding to install roof to work cover (sic) requirements' . Further, Bodels issued a quotation to Kell and Rigby which included in the scope of works to be performed by Bodels ' supply safety hand rail system '. 9 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. 10 The contract between Kell and Rigby and Bodels is in the tender bundle at tab 5. 11 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 management team present at the Premises was Mr Butler. 12 Kell and Rigby opened the site six days per week, when required 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 site supervision requirements and it was agreed to ask Mr Butler to supervise the site on 5 July 2008. Mr Butler was subsequently directed by Tarjavaara to supervise the site on Saturday 5 July 2008. He was provided with a company mobile phone and a mobile phone number of Kell and Rigby in case of emergency. A discussion about emergency procedures took place between Mr Butler and Mr Hanlon. Mr Butler was aware that Bodels were to attend the site as Bodel's supervisor Graeme Pendrick told him on the previous day. 13 Mr Hanlon had previously asked Mr Butler to undertake tasks of a supervisory nature earlier in the project. This included leading safety walks and inductions and acting as Mr Tarjavaara's assistant. Mr Butler had been issued with instructions from Mr Tarjavaara and had received a set of site keys at the commencement of work on this project to open the site and close the site as part of his duties. 14 On 18 June 2008, Mr Tarjavaara inducted Mr Hush to the site and the Bodels roof workers commenced working on the site from that date on weekdays up to the incident. The induction covered topics such as amenities, emergency procedures and work procedures and some other matters including site rules and site specific hazards. Mr Tarjavaara directed Mr Graeme Pendrick to induct his employees into their own safe work method statements and subsequently received a document from Mr Graeme Pendrick signed by each of the Bodel employees indicating that they had read the safe work method statements for the Project. 15 Mr Hush had 20 years experience as a licensed roof plumber. The Premises 16 At the time of the incident the building under construction was single storey with blockwork to the internal walls and a steel roof frame with partial steel colourbond roofing in position. The external brickwalls had not yet commenced erection at the time of the incident. 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. 17 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 south eastern end of the building was missing due to plumbing connection works in-ground for which the roofer plumbers were made aware of. The perimeter scaffold was approximately 1.2 metres wide comprising five steel planks. The working height of the perimeter scaffold was approximately 1.6 metres below the external edge of the roof on the northern and southern sides. The external face of the scaffold extended approx 1 metre above the roofline. There was no roof edge guard rail installed, contrary to the written quotation and contractual documentation supplied by Bodels to Kell & Rigby. Mr Bodel had raised with Mr Hanlon concerns about installing Bodel's hand-railing system to the roof of the building. 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. 18 The internal face of the scaffold deck (the face closest to the building) had no internal 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. 19 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 the southern side of the 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. The Incident 20 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. 21 On 5 July 2008 and at the time of the incident, Bodels' contracted site supervisor, Mr Graham 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. Apart from Mr G. Pendrick and Mr K. Pendrick and Mr Hush, no other workers of Bodels were working at the Premises that day. 22 After a brief discussion between Mr G. Pendrick and Mr Hush on 5 July 2008 work commenced for the day. Mr Hush was the first person to access the roof that morning. Two packages of roof sheets had already been placed on the roof the previous day. Shortly before 8:20am, Mr Hush accessed the roof from scaffold erected at the north eastern edge of the roof. He was working with Mr K. Pendrick who had accessed the roof, but from the northern scaffold. 23 Mr Hush was not wearing a harness or any other fall 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 onto scaffold at its southern side. 24 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 sheeting and beyond the roof's edge. 25 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 by Branscaff. Mr Hush's legs took the impact of the fall which, together with the horizontal ledges, 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 below the roof line. Mr Hush bounced off the "hop up" deck and fell another 500 millimetres onto the main working deck below 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 internal hand rails or kick boards to its inside face. Mr Hush fell from the scaffold altogether until he landed 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. 26 The scaffolding was erected by Branscaff as the primary means of fall protection. The external (or outside) face of the scaffolding installed by Branscaff extended approx 1 metre above the roofline, and it was that section of scaffold that caught him as he fell and prevented him falling off the roof and onto the road. However, the scaffold as installed and certified by Branscaff did not constitute proper edge protection as there was no internal handrail. 27 There was steel scaffolding around the building's perimeter installed as the primary means of fall protection. However the height of the scaffold working deck was too low below the roof line to fully arrest the fall of Mr Hush. Whilst the scaffolding had external fall protection, that arrested Mr Hush's fall, it did not have an internal top rail, mid rail or kick board. Had internal hand rails been installed to the inside face of this scaffold, it would have arrested the fall of Mr Hush and prevented him from leaving the scaffolding and falling to the concrete slab below. 28 Consequently Mr Hush fell from the edge of the roof onto the scaffolding, then onto the ground floor concrete slab. The total vertical distance from the roof edge to the concrete slab was approximately 3.8 metres but the vertical distance from the main scaffold deck to the concrete slab was 2.15 metres. The distance from the concrete slab to the unsealed laneway was approximately 1.7 metres. The total distance between the roof edge and the laneway below was 5.5 metres. 29 After the incident Mr Hush was attended to by David Butler of Kell & Rigby and another contractor at the site, both of whom had formal first aid training although not current. Mr Butler and Mr Norris remained with Mr Hush until he 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 30 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 to Kell & Rigby and Bodels (with a copy sent to Branscaff) and an initial incident investigation report had been prepared. Safety System at the time of the incident. 31 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. 32 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, Michael Bodel ( 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. 33 The Bodels 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 frost or dew. The SWMS did address the issue of 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. 34 A toolbox meeting by all site staff at the commencement of the project nominated the consultation method for this site to be weekly safety walks and toolbox discussions, as such, Kell and Rigby did not have a safety committee on the site. Weekly site safety walks, tool box meetings and weekly safety audits were completed by Mr Tarjavaara and Mr Butler in consultation with other contractors at the site. Safety Walks were consistently undertaken on a weekly basis but 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 and safety walks conducted weekly by Mr Tarjavaara and Mr Butler failed to identify that the safety measures implemented for roof safety were ineffective. In particular, they failed to identify that the existing scaffold protection was insufficient and that the scaffold was 1.6 metres below the eaves line. 35 Mr Butler was not the regular supervisor of the site. However, he had 25 years experience in the construction industry and was responsible together with Mr Tarjavaara for weekly site safety walks and inductions on the site prior to the incident. 36 The written agreement between Bodels and Kell and Rigby expressly provided for responsibility on the part of Bodels' for the supply of ' safety hand railing system' . The agreement also expressly provided for responsibility on the part of Kell and Rigby for the supply of scaffolding. Kell and Rigby engaged Branscaff to provide labour to erect Kell and Rigby's scaffold. 37 Kell and Rigby did not ensure that Bodels or Branscaff implemented systems and measures to prevent falls from heights. These measures include the use of fall protection such as properly erected scaffolding or guardrails around the edge of the roof. The systems put in place at the Premises at the material time were not adequate. Steps Taken After the Incident 38 After the incident Kell and Rigby upgraded its existing safety systems at the Premises. This was in accordance with WorkCover's prohibition and improvement notices. 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. 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 10(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 ... 13The defendant was the head contractor in the building of an ALDI supermarket in country New South Wales at Young. Prior to this project the Kell & Rigby Group had constructed 14 other similar buildings. The defendant employed multiple sub-contractors. The two sub-contractors concerned with this incident were Branscaff Pty Ltd (the scaffold erector) and Bodel's Plumbing Services Pty Ltd. Branscaff, who erected the scaffold (which was owned by Kell & Rigby), are not charged in relation to this incident but Kell & Rigby and Bodel's face prosecution for breach of the Act. 14The sub-contractor, Bodel's, was to supply and install roofing insulation and cladding on the Young site. The scaffolding was erected and to be used by the roofer. The scaffold platform was placed 1.6 metres lower than the roof line leaving an unprotected chasm into the building and a drop of some six metres to the concrete floor. There was no hand rail on the scaffold nor guard rail erected on the roof to stop a roofer from falling into the chasm from a height. 15The defendant's contravention, as pleaded, was a failure, as head contractor on site, to ensure that the roofer sub-contractor, Bodel's, erected a roof guard rail (in reality it was a failure in allowing Bodel's not to erect a roof rail). There was also a failure by the defendant to provide the three roofers at the site on 5 July 2008 with suitably erected scaffolding. Not only was the scaffold platform erected significantly below the roof edge but, on the day of the incident, on the southern side of the building, a section of the scaffold had been removed. Documentation confirmed that responsibility for the scaffold was shared between Kell & Rigby, the defendant, and Bodel's. 16Both corporations were aware of the general risk of persons falling from a height, and that there are necessary protections when persons are required to work at a height. Mr Hanlon from Kell & Rigby and Mr Bodel, from Bodel's Plumbing Service had a conversation where Mr Bodel explained why the site made it difficult to erect the roof guard rail. He was not pressed to erect it by the defendant. The defendant relies upon a certification (of safety) by Branscaff, who erected the scaffold. However, the defendant also had supervisors on site yet they failed to recognise that by placing the scaffold platform lower than the roof edge, with no handrail, there was exposed an open access between the roof and the concrete floor of the building and by agreeing to no roof guard rail being erected on the roof that left the roofers with no fall protection from a six metre drop. On the morning concerned, the roof was slippery. There was no safety feature protecting the roofers from the exposure. Mr Hush fell off the roof, hit the scaffold and then bounced back through the chasm falling over six metres to the ground. He suffered serious injury. The other roofers were exposed to the same risk of a fall. 17The 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 circumstances of this case there was a foreseeable element to the breach which makes it more serious. The defendant accepts there was a foreseeable element to the offence. This admission is commendable. 18The 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, unreported decision of Schmidt J dated 25 February 1994). 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. 19The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant ( Lawrenson Diecasting ). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any employee being required to work on a slippery roof and being exposed to an open chasm without the necessary and identified safety precautions being put in place. 20The 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. 21As to specific deterrence, the defendant submits it had a pre-existing commitment to occupational health and safety as evidenced through its manuals and the publication of the company's systems. Evidence given by Mr Ensor persuades as to that pre-existing commitment. He opined as to the failure to supervise: There were 11 visits from various senior management over the duration of the Project and confirm that 7 of these visits took place before the incident. 22However, while I accept there was a pre-existing safe system documented, it was not being adhered to at this regional site - the Young construction. Once more, the Court must reiterate, it is not in the preparation of materials that safe work methods are implemented but in the rigorous insistence on their performance through induction, training and especially supervision. While I accept there was a safe system planned by the defendant, it was not implemented on site. The incident reflects in a clear failure of supervision on site. The photographs reveal with dramatic effect the exposure to the risk of falling through the chasm and it is difficult to understand how experienced site supervisors did not recognise that risk. The Court reiterates that not only is there a need for rigorous supervision but experienced supervisors must also be given regular re-education on basic site safety standards. There will be an element of specific deterrence in penalty. 23An element of general deterrence is also necessary in the consideration as to penalty to remind those in the construction industry of the necessary insistence on not only defined safe working models, but the performance of tasks in accordance with those safe working models. Supervision on site is a key element in ensuring safe working. No supervisor should alter defined site safe work procedures without considering the occupational safety effect of that variation to the safe work method. This incident exposes the serious obligations carried by site supervisors on behalf of their employer. There is, in the construction industry, expected site-related difficulties but when there is a variation required to a safe work method that variation must be risk assessed and tested against safety requirements. 24Since the incident a safety manager for the Kell & Rigby Group, of which the defendant is but one corporation, has been appointed who reports directly to Mr Kell. He now holds weekly meetings with his CEOs on safety matters. The corporate group now has a positive incentive programme which rewards individual employees. Training and re-training programmes have been developed with an emphasis on identification of risks. I am satisfied the supervisors have been re-educated as to safety standards and the company has properly re-evaluated its systems. Documentation reveals there has been an upgrade of the whole group's systems of work and a re-education of its employees and sub-contractors. 25In 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 on this building site. 26As to the level of criminality, this defendant, as the head contractor on site, failed to identify an obvious risk; it permitted a sub-contractor to not erect a contractually required roof edge guard rail; it accepted a certification from the scaffolder when the risk was obvious; it supervised roofers' work when there were no safety features on the scaffold (hand rail) and no roof guard rail erected; it required work on the roof although there was no scaffolding on one corner. There was a major failure to supervise on this site. 27However, Bodel's, the employer of the injured employee, had asked for an exemption from erecting the roof guard rail from the defendant's supervisors; knew of the removal of the scaffold from one corner of the site; did not require its roofers to attach harnesses and sent roofers to a roof with a slippery surface notwithstanding the above circumstances. Both defendants under the contract had responsibility for site safety. 28I find both defendants by their failures contributed equally to the risk. 29Some inference was cast as to the fact there was no prosecution mounted against the company which erected the scaffold and certified, to the defendant corporation, as to its safety. There was a minor contribution to the risk by that company in this prosecution. Ultimately, however, the obligation was on the defendant to ensure the safe provision and erection of the scaffold to ensure safe working. Its supervisors failed to provide to any persons performing roofing work on this site a safe work environment. 30In Inspector Page v Rail Infrastructure Corporation [2009] NSWIRComm 9, Haylen J referred to Inspector Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 in which the Court considered the use to be made of prior breaches of the Act and the need to avoid sentencing an offender twice for offences already dealt with by a court. Further, in R v Shankley [2003] NSWCCA 253, Howie J referred to the principle expressed in Veen v The Queen (No. 2) (1988) 164 CLR 465 and stated at [27]: ... The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted". 31The Kell & Rigby Group of companies comprises five companies and is a privately held family business. It has been undertaking building and construction work throughout Australia since 1910. The Group collectively employs approximately 250 people and engages up to 5000 sub-contractors per year. The defendant company, first known as North Strathfield Properties Pty Limited, was incorporated on 12 May 1983. Approximately 25 people are employed by Kell & Rigby Holdings Pty Limited to undertake the work performed by Kell & Rigby ACT. 32Mr Endsor opined Kell & Rigby ACT has no prior convictions under the current New South Wales Occupational Health and Safety Act 2000, nor, he opined, under any of its predecessors. However, on inquiry, it was revealed that while Kell & Rigby ACT have no prior convictions, Kell & Rigby Pty Limited (now known as Kell & Rigby Holdings) was prosecuted under the Act for three separate breaches (in 1993, 2001 and 2003) of its occupational health and safety obligations. Therefore, it is of consequence and put into perspective why Mr Kell determined to review the operations of the entire group and their existing safe work procedures. 33However, I accept the corporation known as Kell & Rigby ACT, has no recorded offence and therefore the maximum penalty is $550,000. 34It 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). 35Ultimately, 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)). 36The defendant corporation provides significant work within country New South Wales. 37The defendant has demonstrated remorse and contrition (s 21A(3) Crimes (Sentencing Procedure) Act 1999) through its 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 at [61]: 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 is a good community citizen and has been a benefactor to a number of charities. Evidence revealed the defendant provided care to Mr Hush in hospital, it has reviewed its occupational health and safety system and Mr Endsor expressed contrition on behalf of his company. 38I also accept the defendant has co-operated with the prosecutor and has entered an early plea of guilty to the offence. 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. 39I find the defendant guilty. The defendant is fined the sum of $110,000 with a moiety to the WorkCover Authority. The defendant shall pay the costs of the prosecutor as agreed or assessed. Orders 40The Court makes the following orders: