Inspector Frank Glass v B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust

Industrial Relations Commission (NSW)|2004-07-26|Before: Staff J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Frank Glass v B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245 PROSECUTOR Inspector Frank Glass PARTIES : RESPONDENT BT Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust FILE NUMBER: 3707 of 2003 CORAM: Staff J CATCHWORDS : Occupational Health and Safety - Prosecution under s 15(1) of the Occupational Health & Safety Act - Manufacturing industry - Employee sustained fatal injuries whilst carrying out task not familiar with or suitably trained - No supervision - Foreseeability - General deterrence - Consideration of defendant's financial resources - Discounts - Plea of guilty - Contrition - No prior conviction - Penalty imposed Occupational Health & Safety Act 1983 LEGISLATION CITED : Fines Act 1996 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 CASES CITED : R v Thomson, R v Houlton (2000) 49 NSWLR 383 WorkCover Authority (New South Wales) (Inspector Hopkins) v Michael Wherritt t/as M J Wherritt Concrete Pumping Service [2002] NSWIRComm 16 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Patton) v P & M Denton Building Constructions Pty Ltd and Provincial Homes Pty Ltd [2003] NSWIRComm 171 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Pty Ltd & Anor (1999) 95 IR 383 HEARING DATES: 07/26/2004 DATE OF JUDGMENT: 08/20/2004

PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr G Diggins WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr M Shume of counsel Solicitor: Ms K Willding Sparke Helmore

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J

INSPECTOR FRANK GLASS V B T ENGINEERING PTY LTD AS TRUSTEE OF THE BRUCE THOMAS FAMILY TRUST

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Business was slow at B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust in July 2001 when Bradley Scott and Paul Stokes, who were normally employed in the manufacture and maintenance of concrete mixers and brick cutting saws, were asked to fix a leak in the roof of the factory. This had fatal consequences for Bradley Scott.

This decision relates to the penalty that this Court should impose for a breach of s 15(1) of the Occupational Health & Safety Act 1983 ("the OH&S Act") that occurred on 19 July 2001 at B T Engineering Pty Ltd ("the defendant").

The Charges and Agreed Facts 3. The amended charge alleges that the defendant: FAILED TO Ensure the health, safety and welfare at work of all its employees, in particular Bradley Scott ("the deceased"), contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) At all material times the Defendant was a body corporate able to be prosecuted in its corporate name and style. b) The Defendant was at all material times an employer. c) The Defendant at all material times employed Bradley Scott; d) The Defendant was at all material times engaged in the manufacture of bricklaying machinery; e) On 19 July 2001, the Defendant directed Bradley Scott and his co-employee, Paul Stokes, to carry out repair work to the roof of the building at Factory K, 61 Waratah Street, Kirrawee in the State of New South Wales ("the work"); f) The Defendant failed to provide such training, information and instruction as was necessary to ensure the health and safety of its employees, in particular Bradley Scott, in relation to the work; g) The Defendant failed to provide supervision of its employees and in particular, Bradley Scott, whilst undertaking the work; h) The Defendant failed to conduct a risk assessment in relation to the work; i) The Defendant failed to provide any fall arrest system in relation to its employees and in particular, Bradley Scott; j) The Defendant failed to provide any roof ladders or walk boards for its employees, in particular, Bradley Scott; k) As a result of the said failures Bradley Scott was placed at risk of injury and suffered fatal injuries. 4. The defendant pleaded guilty to the amended charge. The prosecutor tendered an amended statement of agreed facts which was subject to certain qualifications raised by the defendant which I deal with shortly. This statement was as follows (formal parts omitted): 3. At all material times the defendant engaged in the commercial manufacture of bricklaying machinery such as concrete mixers and brick cutting saws. 4. At all material times the defendant was an employer of persons including Bradley Scott ("the deceased") and Paul Stokes. 5. The Defendant was responsible for the day to day administration, management and supervision of all work activities of its employees at the premises. 6. The deceased was employed by the Defendant as a second class fitter and turner. His duties involved the setting up, operation and general maintenance of manufacturing machinery. 7. Paul Stokes was employed as a tradesman's assistant. His duties related to the assembly of brick saws and mixers, the repair of such equipment, packing and other little general jobs. Neither the deceased nor Paul Stokes had any training in working on roofs. 8. On 19 July 2001, Mr Jeff Thomas who was the manager and a director of the defendant, directed the deceased and Paul Stokes to undertake repairs to the roof of the building at the premises. The performance of this repair work involved the deceased and Paul Stokes climbing on to the roof of the building. 9. The roof of the factory was divided into three sections as at 19 July 2001. The southern section and the northern section had a pitched roof with a pitch of 1:3 (approximately 20 degrees). The roof was clad in corrugated iron and "Suntuf" polycarbonate sheeting. The centre section of the roof had a flat roof clad in sheet metal and extended approximately 1 metre above the top of the pitched sections. The Defendant had purchased sheets of "Suntuf" polycarbonate sheeting in December 1997 and had paid a contractor to replace deteriorated sheets of fibreglass with the Suntuf sheeting. 10. The weather was fine and sunny and the roof was dry at the time of the accident on 19 July 2001. The work being undertaken by the deceased and Paul Stokes was repair work to fix leaks that had formed in the roof. They used an aluminium extension ladder to access the roof and carry tools and new sheet metal capping onto the roof. They planned to cut slots into a masonry wall and insert pre-formed metal sheeting into the slots. After cutting the slots into the masonry wall, the deceased and Paul Stokes attempted to insert the sheet metal into the slots but were having trouble pushing the sheet metal in. The deceased was attempting to walk along the top of the roof ridge when the polycarbonate sheeting collapsed underneath his weight and came away from the ridge batten. 11. The deceased fell through the polycarbonate sheeting on the roof of the building to the interior of the building, a distance of 5.05 metres. He died from his injuries in hospital on the 24 July 2001. 12. The Defendant did not undertake a risk assessment prior to undertaking work on the building at the premises. The repair of the building was a matter that was outside the usual professional competence of the Defendant and its employees and the absence of a risk assessment increased the risk to the health and safety of both the deceased and Paul stokes (sic). 13. The Defendant failed to instruct and/or train the deceased and Paul Stokes on the risks associated with working at height and the work methods that should be used to control/eliminate those risks. 14. The Defendant did not install any suitable fall protection equipment or use any fall protection system. The Defendant did not cause the deceased nor Mr Stokes to use any personal fall arrest equipment such as safety harnesses. 15. The need for such equipment has been recognised in various Australian Standards and Workcover Codes of Practice. Workcover issued on 1 November 1993 a Code of Practice entitled "Safe Work on Roofs--Part 1 Commercial and Industrial Buildings". A copy of the said Code is annexed hereto and marked with the letter "A". 16. The defendant did not provide and/or ensure the deceased and Mr Stokes used roof ladders or walk-boards whilst they were working on the roof of the building. The use of such devices is prescribed by clause 2.4.4.1 of Australian/New Zealand Standard 1562.3:1996 where it is stated: "Where it is necessary to walk on plastic sheets, then roof ladders or walk-boards shall be provided." A copy of the said Standard is annexed hereto and marked with the letter "B". 17. Further, technical specification material obtained from the manufacturer of the "Suntuf" polycarbonate sheeting states: "Any work done on sheets should be carried out using walking boards along the purlin line." A copy of the said specification material is annexed hereto and marked with the letter "C". 18. At the time of the fall of the deceased, Mr Jeffrey Thomas who acted in the capacity of factory supervisor was inside the factory attending to other matters. The deceased and Paul Stokes were therefore working unsupervised in the performance of dangerous work with which they were unfamiliar. 19. In addition to this specific failure to supervise, the Defendant failed in its responsibility to suitably supervise in permitting the deceased and Mr Stokes to undertake work for which they were not suitably trained. 20. Annexed hereto and marked with the letter "D" are eight annotated colour photographs depicting the building on which the deceased and Mr Stokes were working at the time of the deceased's fall. 5. The agreed statement of facts annexed a Code of Practice - Safe Work on Roofs - Part 1 Commercial and industrial buildings (Annexure "A"); the Australian/New Zealand Standard Design and Installation of Sheet Roof and Wall Cladding (Annexure "B"); specification material from the manufacturer of "Suntuf" polycarbonate sheeting (Annexure "C") and eight colour photographs taken by Inspector Frank Glass and Mr M Power (Police Crime Scene) on 19 July 2001 showing various aspects of the roof and floor of the factory premises. In addition, the prosecutor tendered a factual inspection report of Inspector Glass dated 19 July 2001.

Mr M Shume of counsel who appeared for the defendant made some brief submissions to identify certain issues that arose in respect of the prosecutor's amended agreed statement of facts. The issues identified were firstly in respect of paragraph 12. The defendant submitted that the words "and the absence of a risk assessment increased the risk to the health and safety of both the deceased and Paul stokes" (sic) was a submission and that the defendant could neither agree nor disagree.

It was conceded that the defendant had no expertise in roofing and it was submitted that had it carried out a risk assessment, it may or may not have changed the situation in relation to the risk assessment. The defendant accepted that there was no risk assessment carried out and that there was a causal relationship between that and the incident but in essence did not accept that this increased the risk. It seems to me that the failure to carry out a risk assessment could have only increased the risk.

The defendant did not agree with the words "and/or ensure" which appear in the first sentence of paragraph 16 of the agreed statement of facts which reads "The defendant did not provide and/or ensure the deceased and Mr Stokes used roof ladders or walk-boards whilst they were working on the roof of the building". It was submitted those words are a reference to a legal requirement which is absolute and to which the defendant has pleaded guilty. I accept this submission. This results in a consequential change with the word "with" being substituted for the word "used".

The Australian Standards provide for the use of roof ladders or walk-boards. The defendant's submission was that there was no evidence to suggest that the use of roof ladders or walk-boards were necessary. Even if roof ladders or walk-boards had been provided, it was submitted, given the circumstances of this case, it would not have prevented a person falling through the Suntuf because they would have been placed at a point to allow access over one part of the Suntuf and there would have still been some exposed area. The defendant contended that the real risk that was created related to the lack of use of mesh or nets. However, assuming that the roof ladder or walk-boards were laid in a north to south direction across the east to west alignment of the Suntuf on the roof they may well have extended well across the Suntuf onto the adjoining sheets of tin and prevented a person falling through the Suntuf, assuming that an employee walked across the roof ladder or walk-boards.

It was common ground that roof ladders or walk-boards were not provided to the employees in respect of work to be done on the roof. I will return to deal with this matter later in this judgment.

In respect of paragraph 18, the defendant sought the deletion of the second sentence in that paragraph and its replacement with the following sentence: The deceased and Paul Stokes were not being supervised whilst they were on the roof at the time of the incident. 12. This was accepted by the prosecutor.

The defendant sought the deletion of paragraph 19 of the agreed statement of facts contending that this statement was more related to instruction than supervision or training. The prosecutor's submission in respect of supervision was that the breach was twofold. Firstly, in directing Mr Scott and Mr Stokes to undertake work for which they were not suitably trained. Secondly, once directed to do that work, there was no actual supervision during the performance of the task. In respect of paragraph 19, I accept the defendant's submission that it is more a submission in relation to instruction and information as opposed to supervision. The defendant conceded that, in any event, it occurred.

Although I have dealt with the issues raised by Mr Shume in respect of the agreed statement of facts, it should be observed that the statement of agreed facts appears to be one falling within the provisions of s 191 of the Evidence Act 1995. In those circumstances, I agree with the observations of Haylen J in WorkCover Authority (New South Wales) (Inspector Hopkins) v Michael Wherritt t/as M J Wherritt Concrete Pumping Service [2002] NSWIRComm 16 at [54], that: ... The tendering of the statements and records of interview could not properly have taken place if they were to be used to contradict or call into question the agreed statement of facts. 15. In my view, the approach adopted by Mr Shume in respect of the statement of agreed facts is to be discouraged.

The Evidence 16. The evidence of the defendant consisted of an affidavit of Beverley Merea Thomas, a director and manager of the defendant and the financial records of the defendant for the financial years 2000 to 2004.

Mrs Thomas' affidavit addressed the following matters: · B T Engineering Pty Ltd commenced in 1970 as a partnership in Engadine. · A description of the defendant's structure and operations. · It currently employs seven people including four family members as working directors, one apprentice and two third class machinists. · In 1981 B T Engineering Pty Ltd was incorporated. · In the financial year ending June 2002 the company made a profit of $29,923.63. · In the financial year ending June 2003 the company made a profit of $25,400.30. · Mrs Thomas was not present on the day of the incident but has been involved in a number of discussions with WorkCover, other directors and employees in regard to the incident. · Although her husband and son had more direct knowledge of the incident they had been deeply affected by the incident and continue to be affected by it. · In the days leading up to the incident there was limited work available to be done in the business. · There were leaks in the roof and Mr Scott had indicated he felt comfortable in accessing and fixing the leaks in the roof. · Mrs Thomas acknowledged that this was not the usual type of work the company carried out and that it had never carried out this type of work previously. · There were discussions prior to Mr Scott accessing the roof which identified that he would walk on the timber purlins and that he would not walk on the Suntuf sheeting. · As the Suntuf sheeting was distributed sparsely throughout the predominantly steel clad roof, it was not envisaged that there was any risk to Mr Scott in performing this task. · The company was unaware at the time of the incident for the need for harnessing or other types of preventative fall equipment, including mesh located above the roof structure but underneath the roof itself. · Everybody at the company was considered to be family. · The directors and employees had been deeply affected by the tragic incident. · The company has made a decision that no work will ever be performed on the roof of the factory premises by any employee in the future. · It was ascertained after the incident that some of the sheets had not been properly secured, nor had the contractors who installed the roof prior to the incident put in mesh. · The roof has been completely replaced and appropriate mesh has been installed. · Signs have been erected on the roof directing people not to go on the roof. · Mrs Thomas stated the company had co-operated with WorkCover and had no previous convictions. · Mrs Thomas stated that she deeply regretted the pain this incident has caused family, friends and work colleagues. 18. Mrs Thomas was asked some questions in cross examination regarding the premises and stated that her husband and herself had purchased the factory which was rented to the company. Her evidence was that it was still being paid off.

Mrs Thomas accepted that no risk assessment had been carried out regarding the work on the roof and that no advice was sought. She was not aware of the need for harnesses or other types of prevention from falling equipment.

Mrs Thomas accepted that the reference to an unsecured loan of $638,000 represented profits after tax of the business which had been distributed through a trust but were shown as a debit to the business. Mrs Thomas acknowledged that last year's sales amounted to $1.6 million and that the business was going alright. The financial records for 2004 showed the directors' salaries amounted to $173,065.

Consideration 21. The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474-5; Fletcher Constructions Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81.

What the defendant did in breaching the terms of s 15(1) of the Act and the seriousness of the risk to health and safety thereby created, is of primary significance in evaluating the seriousness of the offence. Subjective features, if they exist, are an intrinsic part of any assessment of penalty and must be given appropriate weight in the sentencing process where they tend to mitigate the seriousness of the offence.

There are a number of considerations involved in determining the objective seriousness of the offence that is the subject of these proceedings. They are that: (a) employees, Bradley Scott and Paul Stokes were directed to undertake a task which was not part of the usual business of the employer; (b) neither of the employees had any training in working on roofs; (c) there was no risk assessment of the task the employees were directed to undertake; (d) there was no instruction in relation to the task and the risk associated with it; (e) there was no mesh or nets, boards or harnesses or guards in place to provide for protection from falling. 24. Annexure "A" to the agreed statement of facts was the industry code of practice produced by the WorkCover Authority of New South Wales for employers, self employed persons and employees regarding safe work on roofs for commercial and industrial buildings. Part 2 of the code deals with planning and preparation which includes organisation of full prevention equipment, an inspection of the existing roof for safety mesh, structural soundness, including those related to the inspection from below for fragile roof or fragile panels in solid sheet roofs. Part 3 deals with work practices and preventive measures including those related to the prevention of falls. The recommended method includes safety mesh and guard rails if work is to be carried out within two metres of any edge on a new or existing roof from which a person could fall two metres or more. This section also deals with guard rails and independent fall arrest systems including the use of safety harnesses.

I accept, as was submitted by Mr Shume, that the code is not directly related to the defendant's business. However, at the very least, it is instructive to any employer or self employed person who proposes to carry out work or have such work carried out on roofs where a person could fall two metres or more.

The duty imposed by the Act upon employers and those who are self employed is to ensure that their undertaking does not create a risk to the health and safety of persons, be they employees or otherwise, that may arise from that undertaking.

The failure that led to the breach of the Act occurred because the defendant required its employees to carry out work for which they were not trained or skilled, in circumstances where the employer had no experience and the work was outside the normal work carried out by the employer.

This Court has repeatedly stated that the duty on every employer in this State is to be pro-active: WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at [50]. Requiring employees to work on a roof when they were not qualified to do so; in circumstances where there was no assessment of risk and no fall protection equipment of any nature whatsoever and where the roof was, at least in some parts, five metres above the ground, gave rise to a real risk of a serious injury. Such risk, in my view, was readily foreseeable. This is a factor that is relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 at [81].

The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident are relevant to assessing the seriousness of the offence. The use of mesh, harnesses and walking boards, would have reduced the risk to health and safety of the employees. The fact that the defendant did not know what it was dealing with only highlights its failure. It should not have required the employees to undertake the roof fixing task. Suitably qualified persons should have been engaged to undertake the task. Alternatively, if this was not possible, there should have been a full risk assessment with proper instruction and training carried out by the defendant and adequate fall protection equipment put in place.

Hill J in WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44 at 10 dealt with the relevance of the actual consequences of a breach as follows: While the gravity of the breach in a particular case may not necessarily be reflected in its actual consequences, the gravity of the consequences or likely consequences is nevertheless relevant in determining the gravity of the risk. In Hannah v Wonar Pty Ltd (1992) 34 AILR 377 the Full Court stated: "The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences." 31. It is clear from the Full Bench's consideration in Capral Aluminium that general deterrence is a major consideration in occupational health and safety cases. At [73] the Full Bench approved what Hungerford J said in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, at 388: ... the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 32. The Full Bench further stated at [74]: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. 33. Employers have an absolute duty to ensure that employees are not exposed to risks to their health or safety arising from the conduct of their business. The risk to health, safety and welfare of employees will inevitably be heightened where employers require employees to carry out work for which they have not been employed or trained and where the employer has not undertaken any assessment of the risk. Caution should be exercised by employers moving outside their normal area of work. Ignorance in such circumstances cannot lessen the culpability.

There is a strong case for general deterrence in my view because it is difficult to imagine exposing employees to a greater risk than to require them to do tasks that they are not qualified or engaged to perform. Such behaviour by an employer is deserving of censure. The obligation imposed upon employers by the OH&S Act must be clearly understood.

Specific deterrence is directed to deterring the offender personally from repeating any crime that has been committed. Mrs Thomas' evidence was that the company had made a decision that no work will ever be performed on the roof of the defendant's premises by any of its employees. All work will be contracted to appropriately skilled persons. The roof has been completely replaced and appropriate mesh installed. Signs have been erected on the roof directing people not to go on to the roof.

Mr D O'Neil of counsel for the prosecutor referred the Court to s 21 A (2) (g) of the Crimes (Sentencing Procedure) Act 1999 which deals with aggregating factors to be taken into account in determining sentence. In this regard, it was submitted, the injury caused by the offence was substantial.

In Capral Aluminium the Full Bench considered the differing purposes or aims of general deterrence and specific deterrence [71]-[80]. In respect of specific deterrence the Full Bench said at [77]: ... Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future... 38. I therefore propose to include in any penalty, an element for specific deterrence.

There are a number of subjective features that are relevant in considering an appropriate penalty. These include that the defendant had no prior convictions, the defendant entered a plea at the earliest opportunity in respect of the amended application for order and that the defendant co-operated with the WorkCover Authority of New South Wales. The defendant also expressed contrition and regret in respect of the pain the incident has caused family, friends and work colleagues.

The defendant raised its financial position to which I must give consideration: Section 6 Fines Act 1996.

The defendant referred the Court to the decision of Walton J Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 which summarises the authorities dealing with the financial means of a defendant.

In respect of the defendant's financial circumstances, I have been provided with the balance sheets and financial accounts of the defendant for the financial years 2000 to 2004. I accept that the defendant is a small company, however, on a proper analysis of the financial accounts the company has been performing quite strongly. In 2003 its sales amounted to approximately $1.6 million. The directors' salaries in 2003 amounted to $170,000. At the present time there is an unsecured loan in the sum of $638,000 from the company to the Bruce Thomas Family Trust.

In Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435, the Full Court, at 467 dealt with the treatment of the financial situation of the appellant in that case and stated at [81], [82]: ... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. The statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76). However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210, Wright J, President observed: "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence..." 44. I will take the defendant's financial position into account in the determination of penalty in light of the principles referred to in the above authorities.

I propose to consider the objective seriousness of the offence as the primary factor, with the subjective factors playing a subsidiary role to the gravity of the offence to ensure a sentence is not produced which fails to adequately reflect the seriousness of the offence.

Mr Shume referred the Court to a decision of Staunton J in WorkCover Authority of New South Wales (Inspector Patton) v P & M Denton Building Constructions Pty Ltd and Provincial Homes Pty Ltd [2003] NSWIRComm 171. P & M Denton Building Constructions Pty Ltd were engaged by Provincial Homes Pty Ltd to erect roof trusses. The companies were prosecuted pursuant to s 15(1) and 16(1) respectively for failing to maintain a system of work that was safe and which resulted in an employee of P & M Denton Building Constructions falling from a roof, receiving spinal injuries and becoming a paraplegic. A second employee of P & M Denton was injured when a falling truss struck him on the right shoulder.

P & M Denton was found by her Honour to be a small company with a sole director which had ceased to trade prior to the matter being determined. Her Honour imposed a notional penalty of $40,000 and after applying discounts, a final penalty of $26,000.

It was the second offence for Provincial Homes Pty Ltd. Her Honour imposed a notional penalty of $70,000 which, after applying discounts, resulted in a final penalty of $45,500.

Mr Shume submitted that any fine imposed by the Court should be within the range fixed by her Honour.

The maximum penalty for a corporate first offender is $550,000. This penalty reflects the public expression by Parliament of the seriousness of a breach of this section of the Act: WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Pty Ltd & Anor (1999) 95 IR 383.

The prosecution has acknowledged that the defendant entered a plea at the first available opportunity to the amended application for order. In accordance with the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, it is entitled to a discount for the utilitarian benefit of that plea and I determine a discount of 25% should be allowed.

Taking into account the subjective features I have earlier identified, I allow a further discount of 10%.

In my view the objective seriousness of the offence calls for a substantial penalty, however, the penalty must not be fixed at such a level that will be oppressive.

Overall, in assessing all of the issues before me, I determine the penalty for this matter to be $90,000 after making the consequential adjustments flowing from the discounts.

ORDERS The Court confirms that a verdict of guilty is entered and the defendant is convicted of the offence under s 15(1) of the Occupational Health & Safety Act 1983 as charged. Further, the Court makes the following orders: 1. The defendant is fined an amount of $90,000 with a moiety thereof to the prosecutor.

The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or as determined in accordance with the rules of the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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