DELIBERATION
27There is no doubt that this was a serious breach of the Act. Counsel for the defendant accepted that description of the offence but wished to place it in a context that stressed the relatively low level of criminal responsibility of the defendants. In this case there was a fall from heights while performing work in the construction industry - an all too well known and frequent occurrence. It was agreed between the parties that the fall was from a height between 2.2 and 3 metres but it is the risk of the fall that has to be addressed. The injuries sustained by Mr Mackie demonstrate the potential for very serious injury - as it is, Mr Mackie landed on his legs rather than on his neck or head but still sustained severe injuries. The defendant company had a safety system that addressed falls from height and the SWMS for work performed by the crane crew and the formworkers also recognised this risk and laid down preventive measures. Despite that level of recognition, this accident occurred.
28There was some debate as to precisely how it came to pass that this work was being performed in relation to formwork on the hoarding. It was an agreed fact that the actions taken between the formworkers and the crane crew to remove this material from the hoarding was action undertaken without the approval or knowledge of the defendant company or Mr Doueihi. Site documents placed in evidence appear to support such a conclusion. Mr Doueihi's uncontested evidence was that he was concerned that formwork had been placed on the hoarding and directed the formworkers to leave it there and he would make arrangements for the removal of the formworkers' material when the hoarding was demolished.
29On the day of the accident it appears that the defendant company had arranged for the crane crew to be on site to remove formwork from the buildings but it was not their intention to move the formwork from the hoarding. The defendant company did not conduct an induction and there is some evidence that the formworkers pressed the crane crew to remove the formwork material from the hoarding. It is at least a possibility that, if the induction had occurred, there would be some discussion about the work to be performed and the risks may have been addressed, especially if it had been disclosed that work was to take place on the hoarding. Here, there was no scaffolding or handrails to prevent a fall nor where there are any directions that the dogman wear a safety harness or adopt some other measure to prevent a fall from the hoarding.
30It is relevant, however, that the hoarding was not a place where work was normally to be performed but was a protective measure established over the public footpath. The defendant company had given instructions that the area was not a work area and in those circumstances it was thought unnecessary to install scaffolding or handrails. In his oral evidence, Mr Mackie confirmed that no one had asked the defendant company about the lift of the material from the hoarding. The crane driver thought that the company foreman had asked for this lift to be undertaken but he could not remember exactly who had given this instruction. To perform this work Mr Mackie had arranged a ladder in order to obtain access to the hoarding. There was no other access available.
31This work on the hoarding was conducted during a period when there were light showers that interrupted the work. The surface was slippery but on the evidence it is unclear precisely what happened to Mr Mackie: he may have slipped but there are site notes that indicate that there was a movement of the load that caused him to move sideways and at this point he fell. The Court accepts the submission for the prosecutor that the precise way in which Mr Mackie fell is of little relevance in this matter and that it is necessary to concentrate on the risk alleged in the statement of offence, namely, a risk of falling from height.
32In this case, as was charged, the defendants had failed to ensure that this risk was addressed by the use of fall arrest devices or a stable and securely fenced work platform or secure perimeter screens, fencing handrails or other forms of physical barriers or other forms of physical restraint capable of arresting falls from height. There was a failure to inform and instruct the crane crew that the risk could be addressed by these very same measures. It was also established and accepted that the defendant failed to ensure that there were site inductions addressing these issues and there was a failure to provide supervision at the premises to ensure that non-employees were not working without fall protection. There was also a failure to ensure that plant or equipment was not stored on the hoarding and accessed by people who were non-employees in circumstances where the hoarding was not securely fenced. The Occupational Health and Safety Regulation indicated the relatively simple and straightforward steps that needed to be taken to address this risk: that was also demonstrated by the measures taken by the defendant corporation after the accident.
33The penalty to be imposed will reflect the necessity for both general and specific deterrence. This case, in its particular circumstances, should be another warning especially for those in the construction industry about the need to be vigilant to prevent falls from height. While it is understandable that the work methods of sub-contractors will be accepted on work sites because of their specialist skills, nevertheless, ensuring that those safety measures are adhered to is part and parcel of project management. Having regard to the circumstances of this incident, specific deterrence, while necessary, should play a reduced role even though the defendants continue in the industry. The defendant company has a good safety record and the circumstances of this accident were unusual.
34In relation to subjective matters, the issue that most divided the parties was the question of the extent to which, if at all, there should be any discount because of the pleas of guilty ultimately entered by the defendants. The prosecutor relied upon numerous passages from the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104; At [130] the Court noted that the earlier the plea was received the greater the public benefit. The various benefits to the court and justice systems were discussed, including reducing the waste of time of witnesses and the reduction in congestion in court lists being matters of relevance in this particular jurisdiction. Other issues were of particular relevance to the general court system rather than the jurisdiction exercised by this Court.
35Particular emphasis was placed upon the following passages in the guideline judgment:
[132] All of these benefits are significantly attenuated, if not lost, to the extent that pleas occur only on the day of trial. In so far as such benefits are achieved, they enable the criminal justice system as presently resourced to reduce delays with further attendant advantages.
[ 133] From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may
not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time.
36In the present case the pleas were entered halfway through the second day of a four-day hearing and so it is quite impossible to categorise them as "early pleas" as identified in the guideline judgment. In terms of efficiency, the parties used the fourth day of the hearing to conclude the sentencing: in terms of the optimum use of the Court's resources that represents a significant utilisation of the time set aside for the hearing having regard to the fact that there were some factual issues still in contest that were substantially resolved by the evidence called. Having regard to the fact that the Court would be required to consider in some detail the evidence if the trial continued and would then be called upon at some later time, if a conviction was recorded, to deal with sentencing, it is accepted that there has been some efficiency achieved by these pleas of guilty even though they occurred at a late stage.
37The defendants, in particular, pointed to the jurisdictional issue raised at the close of the prosecution case and the fact that this had been a live issue for many months but not addressed or adequately addressed by the prosecutor. Once the Court had ruled on this issue and following a short adjournment, pleas of guilty were promptly entered. The prosecutor contested that categorisation of what occurred, submitting that the issues raised about the validity of the offences were difficult to understand and indeed, appeared to be put on a different basis in oral argument before the Court. Be that as it may, there appeared to be a genuine concern by the defendants about the manner in which the charge was drawn. The defendants' prompt pleas of guilty once that issue was dealt with by the Court does suggest that a more informed discussion between the parties, especially as part of case conferencing, may have achieved this result at an earlier time. This is not a matter for apportioning fault but is one for identifying any legitimate concern that may have inhibited an earlier plea. The issue as to the validity and nature of the charge could, of course, have been addressed prior to the trial and indeed, could have been addressed before the prosecutor commenced his case. Taking all these matters into account, the Court is able to identify a modest utilitarian benefit in the late pleas. In all the circumstances it would be appropriate, on this basis, to allow a five per cent discount for the pleas of guilty.
38There are other subjective factors. The defendants are first offenders and are entitled to the leniency that attends upon that status. They have participated in this high-risk industry since 1999 without coming to attention and that speaks well of their usual systems of safety and their attention to matters of safety. The defendants acted promptly to address the defects in their safety system, especially as to induction, following this accident. The defendant company has continued to expend resources on reviewing and updating its safety systems. These matters will be taken into account in mitigation. It is clear also from the evidence of Mr Doueihi that the defendants have taken responsibility for these deficiencies and the accident resulting in Mr Mackie receiving severe injuries. Mr Doueihi expressed his disappointment that the defendant company's safety systems had fallen down in ways demonstrated by this accident.
39Having regard to all these matters, the Court makes the following orders:
(a) in relation to Matter No IRC 452 of 2010:
(i) the defendant, Ceerose Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 452 of 2010 to which the defendant has entered a plea of guilty;
(ii) the defendant is fined the sum of $90,000 with half that sum to be paid by way of moiety to the prosecutor;
(iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court.
(b) in relation to Matter No IRC 453 of 2010:
(i) the defendant, Edward Doueihi, is found guilty of a breach of s 8(2) by operations of s 26(1) of the Occupational Health and Safety Act 2000 as particularised in Matter IRC 453 of 2010 to which the defendant has entered a plea of guilty;
(ii) the defendant is fined the sum of $9,000 with half that sum to be paid by way of moiety to the prosecutor;
(iii) the defendant is to pay the costs of the prosecutor in the sum agreed or in the absence of agreement, as ordered by the Court.