Inspector Gary Mason v Wild Geese Building & Maintenance Pty Ltd

Industrial Relations Commission (NSW)|1991-12-16|Before: Kavanagh J, Fisher CJ, Leonard J, Ms J, Mr P

CITATION: Inspector Gary Mason v Wild Geese Building & Maintenance Pty Ltd [2006] NSWIRComm 152

Prosecutor: PARTIES: Inspector Gary Mason Defendant: Wild Geese Building & Maintenance Pty Ltd

CATCHWORDS: Charge under s8(1) of OHS Act - Cleaning gutters of shed - unsecured ladder - access unsafe - no fall protection - failure to properly train and supervise - no risk assessment of task - acts causally connected to risk - act or failure to act identified through particulars - agreed facts do not expand charge - context in which offence committed relevant - guilty plea - penalty

LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(1) Crimes (Sentencing Procedure) Act 1999 s21A

Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd (2000) 99 IR 137 Ferguson v Nelmac (1999) 92 IR 188 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Robins v CT Plumbing Pty Ltd (unreported decision of Fisher CJ, 16 December 1991, No. 522 of 1991) Inspector Schultz v Leonard J Williams (Timber) Pty Limited [2001] NSWIRComm 286 CASES CITED: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; 2000 115 A Crim R 104 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited [2002] NSWIRComm 340 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Australia) (No 1) (1999) 101 IR 253 WorkCover Authority of NSW (Inspector Yeung) v ABC Seamless Pty Limited [2006] NSWIRComm 121 Inspector Yeung v Thiess Pty Limited (No 2) [2004] NSWIRComm 9

Prosecutor: Mr M.P. Cahill of counsel Solicitors: Ms J. Healy/Mr P. Thompson Phillips Fox LEGAL REPRESENTATIVES:

Defendant: Ms W.G. Thompson of counsel Solicitors: Mr L. Wilson Doyle Wilson

INSPECTOR GARY MASON v WILD GEESE BUILDING & MAINTENANCE PTY LTD

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Inspector Gary Mason of the WorkCover Authority of NSW against Wild Geese Building & Maintenance Pty Limited based in the Northern Territory. The prosecution issued under s8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 The Application for Order states: On 17 February 2005 at approximately 1:00pm at the premises (85 Simpson Street, Boggabilla), in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of its employees, including Ivan McIntosh ( injured worker ), in that whilst the injured worker was on the roof of a shed ( shed ) at the premises for the purpose of cleaning its guttering, he stepped on a skylight panel in the roof of the shed which gave way causing him to fall a distance of approximately 7.5m onto the concrete floor of the shed below and sustain serious injuries including a fractured skull, broken forearm and knee injuries by reason that:

The Defendant failed to ensure that systems of work were safe and without risks to health in that: 1.1 It failed to provide a safe means of access to the gutters and roof of the shed; 1.2 It failed to provide the injured worker with fall protection whilst accessing the guttering and roof of the shed; and 1.3 It failed to conduct a risk assessment in relation to the task of cleaning the guttering of the shed. 2. The Defendant failed to provide such information, instruction, training and supervision as may be necessary to ensure the injured workers' health and safety at work in relation to the task of cleaning the guttering of the shed. 3 The defendant pleaded guilty. 4 An Agreed Statement of Facts was tendered which relevantly reads as follows: 2. The Defendant conducted its business of building maintenance from 85 Simpson Street, Boggabilla in the State of New South Wales ( premises ). 3. At all material times the Defendant: 3.1 was engaged in the business of housing construction and maintenance; 3.2 employed Ivan McIntosh ( injured worker ), 38 years of age, as a housing maintenance/carpenter at the premises; 3.3 employed Wayne Ronald Lavender ( Lavender ) as a Supervisor at the premises; 3.4 was the occupier of the premises, which included a metal clad storage shed measuring 28m x 16m ( shed ) and utilised the premises as a place of work; 3.5 owned a 6m aluminium extension ladder; and 3.6 in the course of its undertaking, made available the 6m extension ladder to be utilised by its employees in carrying out various duties. 4. At all material times Lavender was a director, secretary and person concerned in the management of the Defendant. 5. On 17 February 2005 ( day of the incident ), Lavender directed the injured worker to clean the guttering of the shed. The guttering needed to be cleaned to provide a clean source of water to a water tank that had just been installed adjacent to the shed. There was some urgency to clean the gutters due to an approaching storm. 7. Lavender directed the injured worker to use the 6.0m aluminium extension to access the guttering and told him to use a cement trowel to clean out the guttering. 8. The injured worker was unable to find the cement trowel recommended by Lavender and according to the injured worker Lavender gave him a 1.5 inch putty knife instead. 9. The injured worker experienced difficulty in cleaning the gutter with the putty knife due as the gutters were too full and compacted to be cleaned with the putty knife and decided to look for a better tool with which to clean out the gutters. 10. The injured worker recalled that the company owned portable high-pressure water cleaner which might have been more suitable for the job. 11. The injured worker then took the water pressure cleaner on to the roof of the shed using the 6m extension ladder that was positioned beside a water tank adjacent to the storage shed. 12. Once on the roof, the injured worker, in an attempt to free up a length of hose that had become caught up, walked up and over the ridge of the roof to the edge on the other side of the roof where he freed the hose. 13. At approximately 1.00pm on the day of the incident whilst walking back to the pressure cleaner, on the other side of the roof, the injured worker stepped onto and fell through a fibreglass skylight on the roof, falling approximately 7.5m onto the concrete floor beneath. 14. As a result of the incident the injured worker suffered a fractured skull causing nerve damage to his right eye and resulting in double and blurred vision, nerve damage to his right knee and shattering of bones in his left forearm and wrist, requiring bone and skin grafts and the insertion of two steel pins. The injured worker remained hospitalised for approximately 6 weeks until 2 April 2005. 14.1 The fibreglass skylight was not load bearing and was not capable of supporting the weight of the injured worker. There was no safety mesh installed underneath the fibreglass skylight. 15. On 18 February 2005, I attended the premises and observed as follows: 15.1 The Wild Geese Building & Maintenance Group QLD/NSW Pty Ltd depot was situated on the corner of the Newell Highway and Simpson Street. The premises measures 50m x 40m with the longest dimension being in an East West direction. A 1.8m high chain wire mesh fence secured the perimeter of the premises, with an access gate situated on the southern side. 15.2 The western third of the premises was unsealed and vacant. A large metal clad shed was situated in the eastern two thirds of the premises with a 3m x 10m demountable office and a 2.4m x 2m demountable toilet situated at the western end of the shed. 15.3 The shed was steel frame construction with a gabled roof, both the roof and walls were clad with corrugated colour bond metal sheeting except for the East wall which was of Besser brick construction up to the gable section of the roof. The floor of the shed was concrete. 15.4 The shed measured 28m x 16m with the longer side running in an East West direction. The wall height was 5m with the peak of the roof being approximately 8m. There were two 2.5m hinged doors on the North and South walls situated 15m from the West end of the building. The South side doors were fully open, the northern doors were closed with a small access door hinged open. Metal box roof gutters were attached to the north and south wall. There was also a 6.5m x 2,8m access in the centre of the West wall. The access had a 2.8m x 6.5m skillion sheltering the access. 15.5 There was a plastic water tank positioned outside of the northwest corner of the shed. The tank had the following inscription 'Rapidplas RT2200'. The tank's dimensions were 1.35m # x 1.96m high. The tank was mounted on a 1.4m x 1.4m timber deck. The total hight (sic) of the tank and deck was 3.28m. A downpipe was leading from the box gutter to the tank. A metal strap was secured around the tank 3.22m high. The strap was secured to the north and west walls of the shed. There was a Toyota Utility QLD Registration 346 FWV parked adjacent to the water tank. 15.6 A 6m aluminium extension ladder was positioned approximately 1m to the east of the water tank structure. The ladder was identified by the following Bailey Industrial Tradesperson 120kg. The top of the ladder was leaning against the box gutter with 200mm of the stiles protruding above the gutter. The base of the ladder was placed 1.85m from the shed wall. The ladder was not secured. 15.7 A yellow high-pressure water cleaner was situated on the roof and positioned 15m from the west and 3m from the north edges of the shed. An electrical extension cord led down from the high pressure water cleaner to ground level where it led through a small door in the north wall of the shed to a power outlet within the shed. A 12mm garden hose led from a tap on the southeast corner of the shed up to the roof and was connected to the high-pressure water cleaner. 15.8 Five skylights were attached to the roof of the shed. The skylights were situated approximately 5.5m apart and measured 1200mm x 800mm.The skylights were attached to the roof via tech screws and were positioned on the north side of the roof with the 800mm side adjacent to the roof apex. The skylights were of an opaque fibreglass corrugated structure. 15.9 Observations from the outside of the building revealed that the fourth skylight from the west end of the building did not have fibreglass material completely covering the 1200mm x 800mm opening. 15.10 Observations from the inside of the shed revealed that the fourth skylight from the west end was damaged. On the northern side of the skylight a 600mm section was broken away from the fibreglass sheet while still attached to the sheet it was hanging in a vertical direction leaving an opening measuring approximately 500mm x 600mm.The panel appeared as if an object had broken through it. 15.11 A 1 metre radius of concrete floor directly below the above mentioned damaged fibreglass panel had several pools of dried blood. There was a pink electric extension cord adjacent to the dried blood leading from a power outlet to the high-pressure water cleaner situated on the roof. 16. At the time of the incident: 16.1 The Defendant had employed the injured worker for approximately 3 weeks. 16.2 Lavender was the injured worker's supervisor at the time of the incident. 16.3 The injured worker was unsupervised at the time of the incident. 16.4 The injured worker had not received training in relation to working safely at heights and in particular in relation to the use of ladders. 16.5 The defendant failed to ensure that the ladder was adequately secured whilst the injured worker was accessing the guttering. 16.6 The injured worker was not provided with any fall protection whilst accessing the guttering or whilst on the roof of the shed. 16.7 The Defendant did not conduct a risk assessment in relation to the task of cleaning the guttering of the shed. 16.8 The Defendant did not have a safe work method statement for cleaning the guttering of the shed. 17. WorkCover Code of Practice - Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings includes, inter alia, the following guidelines for working safely on roofs: 17.1 Paragraph 2 - Planning and preparation - The first step in ensuring that work is done safely is to plan and prepare for it so it can be dome (sic) safely. Planning and preparation should involve consultation with all engaged in the work including employee representation. 17.2 Paragraph 3.1 - Prevention of falls - Provision should be made to prevent persons falling if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall two metres or more. The recommended method is safety mesh and guard rails. Other available methods include industrial fall arrest systems, scaffolding, safety nets or a combination of these methods. These methods should only be used if the recommended method cannot be used. Notices issued 18. On 18 February 2005, two Improvement Notices were issued to the Defendant.

Steps taken following the incident 19. Since the incident, the Defendant has implemented the following safety controls: 19.1 Implemented a Safe Work Method Statement titled 'Repair Roof of Workshop 85 Simpson St. Boggabilla NSW' which provides that a ladder is to be placed against the building using a ladder bracket and for harnesses to be used to protect employees against falling when working from heights. 19.2 Carried out a risk assessment on all sites, including the shed which the injured worker was working on, which identified a medium to high level of risk of falls when working at heights and identified appropriate methods of control including installation of edge protection, requiring harnesses to be worn, trestles to be used and proper ladders. 19.3 Conducted a training course on scaffold erection on all sites and provided a refresher course on OH&S working on roofs and at heights. 20. The Defendant cooperated with the WorkCover Authority. 5 Mr M.P. Cahill, of counsel, appeared for the prosecutor. The Application for Order filed on 5 December 2005 and a Statement of Agreed Facts were relied upon. The prosecutor tendered a number of photographs of the site, a factual inspection report dated 25 December 2003 and a Code of Practice entitled "Safe Work on Roofs - Part 1 - Commercial and Industrial Buildings". 6 Ms W.G. Thompson, of counsel, appeared for the defendant. Reliance was placed upon the affidavit of Mr Patrick Joseph Hewitt, sole director of the defendant, sworn 21 April 2006 with the defendant's financial statements. Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 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).

8 Their 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]). 9 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [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.

10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The 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 risks to their health and safety at the workplace. Of relevance, particularly, is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the Court is to take into account in any sentencing hearing. Section 21A 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 11 In a consideration of penalty, the court must consider 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" . . .

12 In an assessment of the gravity of this offence, a number of particular features must be addressed. The defendant was incorporated as part of a project commenced by Patrick Joseph Hewitt to undertake building and construction work in Aboriginal communities and to provide, through the defendant, training opportunities in the building and construction industry as well as ongoing employment opportunities for indigenous workers. 13 On 27 January 2005, the defendant employed Ivan McIntosh, the injured employee, some three weeks before the incident as a carpenter to undertake both housing maintenance and construction work. 14 Mr McIntosh was not given a safe working induction or occupational health and safety training at the commencement of his employment with the defendant. 15 On 17 February 2005, Mr McIntosh was directed to clean the guttering of a storage shed using a 6 metre aluminium extension ladder to access the guttering and a 1.5 inch putty knife for the cleaning of the gutters. Mr McIntosh experienced difficulty in cleaning the guttering with the putty knife as the debris was impacted and decided to look for a better tool with which to perform the task. He found a portable high-pressure water cleaner or Gurney owned by the defendant. In attempting to position the Gurney on the roof of the storage shed, using the 6 metre extension ladder to obtain access to the roof, the hose that he was using to supply water to the Gurney became jammed. In an attempt to free up the hose, he walked up and over the ridge onto the northern side of the roof. Whilst on the northern side of the roof, Mr McIntosh stepped onto and fell through one of the skylights, falling approximately 7.5 metres onto a concrete floor below. 16 Mr McIntosh suffered a fractured skull causing nerve damage to his right eye, nerve damage to his right knee and fractures in his left forearm and wrist. He required the insertion of two steel pins, together with bone grafts, with respect to the fractures in his left forearm and wrist. Mr McIntosh also required skin grafts to his left forearm. Further, as a result of the nerve damage to his right eye, Mr McIntosh continues to suffer from double and blurred vision. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) are apposite in this consideration: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant.

and as Wright J, President said in WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) 99 IR 163 (at 22): . . . The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; WorkCover Authority (NSW) (Inspector Hannah) v Wonar Pty Ltd (at 9); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Albury City Council (at 408-409); Lawrenson Diecasting Pty Ltd (at 476); WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383. 17 As to the alleged risk, the prosecutor submitted that in determining the objective seriousness of the offence the Court ought also to take account risks arising from the injured employee seeking and obtaining access to the roof of the shed, including risks associated with the "skylights". The prosecutor submitted it was foreseeable that the injured worker might access the roof of the shed whilst cleaning the gutters. Reliance is placed on the observation of Peterson J in Inspector Schultz v Leonard J Williams (Timber) Pty Limited [2001] NSWIRComm 286 at [29]: . . . It is simply insufficient to give general direction and to, effectively, hope for the best. . . . 18 An instruction to an employee that a job should be done in a particular way does not ensure those instructions are followed. Walton J, Vice President, in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Australia) (No 1) (1999) 101 IR 239 (at 257) (as quoted with approval by the Full Bench in Riley v Australian Grader Hire (2001) 103 IR 143 at [16]) observed: . . .In any event, the mere stipulation of procedures and instructions to carry out work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. …. I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety , 20 June, 1996 unreported but cited at p 44 of Redgrave's Health and Safety, 1998, (3rd ed) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was, held that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out. Haynes (at 181-182) Kirkby (at 53) and McMartin (at 245). 19 It is necessary, in order to properly assess the objective seriousness of an offence to identify the whole context of the offence actually committed by the defendant. In Olbrich v R (1998) 45 NSWLR 538 it was said (at 542): Whilst the language of aggravation/mitigation is not inappropriate, what is in fact involved is establishing the objective seriousness of the offence. In R v Laurentiu and Becheru , the charge was possession under s 233B(1)(a) of the Customs Act 1901 (Cth) . As Wood J (with whom Sharp J agreed) said (at 416) "... For his Honour to have sentenced either applicant on the bare fact of possession of the cocaine, the substance of the controlled delivery, would have involved serious error. Without the context of the possession, no assessment could have been made as to where the offences fell in terms of objective seriousness, within the range of uses involving possession of not less than, the traffikable quantity of cocaine." His Honour referred to Ibbs v The Queen (1987) 163 CLR 447 where (at 452), the High Court said in a joint judgment: "... When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case." So, in this case, the sentencing judge had to find facts about the context of the importation.

and at 544: . . . It is appropriate to use the language of "aggravation", but what is in truth occurring is the identification of the whole context of the offence actually committed by the accused, which context determines the objective seriousness of the offence. . . . 20 It is also necessary to take into account the causative factors of the risk. Walton J, Vice President, noted in WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Limited (2002) 121 IR 1 at [56]: . . . what is required to demonstrate a breach of those sections is proof of the existence of a failure on the part of the employer which is causally connected with a relevant risk to safety: Drake Personnel Limited t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 452 -453. . . . 21 Therefore in a consideration of the objective seriousness of the offence the risk must be identified and examined in the context in which it was created allowing for an identification of the causal factors creating the risk.

22 The prosecutor's submissions as to the risk is of some consequence. It requires an examination of the charge and the pleaded failures which are relied upon which failures must have a causal connection to the risk. 23 In my consideration of the particular "risk" which is identified through the charge it is necessary to examine the charge and the particulars relied upon. On 17 February 2005, while on the roof of a shed to clean its gutters, Mr McIntosh stepped on a skylight panel in the roof which panel gave way causing him to fall 7.5 metres. He suffered injury. It is asserted the instruction was to stand on the ladder to clean the gutters. 24 The particulars relied upon in s8(1) charge as to the unsafe system of work allegation are the failure to provide a safe means of access to the gutters and roof; no fall protection while accessing roof and gutters; no risk assessment of the task. The second particular asserted a failure to inform, instruct, train and supervise for safe working the allocated task of cleaning the gutters. 25 I am of the view the charge, when read with the pleadings, does not allow for a consideration of any failures related to the condition of the roof including the skylights therein as the prosecution submitted. While the condition of the roof and skylights may have made a contribution to the risk they were not causative of the risk which was pleaded. If the prosecutor wishes to so submit it should have amended the particulars. While a systems charge under s8(1) is an all encompassing charge under which there is recited in the Act an extensive range of duties "without limitation" nonetheless the particulars of a charge detail the acts of the defendant which are relied upon by the prosecution to establish the breach of the act on the relevant date. Neither the state of the roof and skylights nor acts of the defendant related to the condition of the roof or skylights were particularised as acts having a causal connection to the asserted risk. Details related to the state of the roof and skylights have been placed before me through the Agreed Statement of Facts. They are of relevance only to establish the context in which the breach occurred. They were not relied upon as particulars of the breach. The risk as pleaded was therefore allowing an unsupervised, not properly instructed, employee unsafe access to a roof. That risk did not lead to the injury suffered but the potential risk was still most serious. The acts of omission were not providing an employee with a secured ladder, not providing him with fall protection equipment and not properly instructing him so he could successfully perform the task.

26 The employee was given instruction as to how to perform the task. Those instructions were not effective for the employee to successfully perform the work. It was at this point the failure to supervise becomes relevant. The employee re-designed the work method. I accept it was foreseeable that an employee who was instructed to clear blocked gutters at roof height could seek access to the roof to perform his task. It was also foreseeable that an employee unsupervised and instructed with a work method that did not succeed would seek out another way to perform the task. Such a circumstance while establishing there was the failure to supervise also establishes it was foreseeable that the employee would seek access to the roof to perform an alternative work method. I therefore accept the failure to provide safe access to the roof was an act of the defendant with a causal connection to the risk. 27 The identified risk is therefore not the risk of falling through the skylight but the risk created by leaving an unsupervised employee without the correct equipment to perform a task without a risk assessment as to safe working and without safe access or fall protection.

28 I therefore reject the prosecution's submission that the identified risk should include "risks associated with the skylights". Such a consideration would require the Court to reason from the injury and the fall rather than the pleaded risk to safety, namely, the foreseeable risk to safety in an unsupervised employee having unsafe access to a roof to perform a task in circumstances where there was a failure to provide a safe work method. I am satisfied this was a serious breach of the Act. 29 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that 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. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive."

These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610 where it was said at [74]: . . . the . . . 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. It follows that 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 Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 30 The defendant, as to specific deterrence, puts a number of facts before the Court. The defendant employed ten trainees and two contract supervisors for this particular project in NSW. The defendant continues to operate as a building and construction company. As the words of Boland J in Inspector Yeung v Thiess Pty Limited (No 2), [2004] NSWIRComm96 acknowledge at [25]: . . . the construction industry is a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act 2000 (NSW), many of which involve falling from heights, continue to constitute a significant proportion of the cases coming before the Commission in Court Session….

The construction industry is notoriously risk-affected and this breach exposes the need to reiterate concern as to safe working in the construction industry. Therefore an element of both specific and general deterrence is required in the penalty imposed. 31 The defendant had in place at the time of the incident some systems of work as part of its developing plan for safe working, as well as occupational health and safety policies and procedures in place. It was aware of its obligations under the Act. The defendant had engaged an external consultant, Mr Lamont, to prepare procedures to ensure compliance with the Act. The project at Boggabilla commenced in December 2004. The Project Manager first appointed, Mr Peter Hartley, left four to five weeks after the project commenced. Mr Lavender was appointed as the interim Project Manager. Assurances were given to Mr Hewitt that the occupational health and safety programme was being implemented. The incident revealed that this was not the case and that only parts of the defendant's system had been implemented. 32 Since the incident the defendant has continued its operation and completed eight houses as part of the project with another six near completion. The defendant's ten employees have varying levels of skills as do its two contract supervisors. I accept the defendant makes a very significant contribution to the community. It provides employment for members of the aboriginal community: a community in desperate need of support particularly support in the form of the employment and the training for the qualification of its youth. It is a most socially responsible corporation. I accept the words of the Programme Manager from the NSW Department of Commerce who commented: . . . The general satisfaction of the trainees with Wild Geese is very high and this is obvious from talking to them. Wild Geese are demonstrating a strong commitment to their personal development and their well-being. . . . . . . My observation of the company is that it is an exemplary employer, has a great commitment to the Aboriginal communities within which they work and deliver work of a high standard. 33 However, in the context of providing employment and training for young men and women the defendant has assumed a serious responsibility. Not only has it assumed responsibility to provide safe working for its young employees (trainees) through a commitment to training and qualifying them (a system for which the defendant is to be held in the highest regard) it is establishing safe work practices in young men and women who will when properly qualified work within the construction industry to ensure best practice into the future.

34 After the incident, the defendant reviewed its procedures by implementing the following measures: · The checking and administration of the documented outcomes of the OHS program were transferred to the Darwin office. · Safe Work methods are prepared prior to any work being performed. · Risk assessments are conducted prior to work being undertaken. · The induction training must be completed before work commences as specified in the OHS program. · A training course on scaffolding has been conducted as well as a refresher course in safety issues related to working on roofs and at heights. Courses were also provided to employees on the use of portable ladders. · With the resignation of Mr Lavender in late 2005, Mr Andrew Watkins has been appointed as Project Manager. · The defendant has directed that OHS procedures and training be given high priority. 35 Contrition has been demonstrated by the expression of remorse from Mr Hewitt and the strenuous efforts made to monitor Mr McIntosh's rehabilitation programme, to include him in social events and, even more importantly, to offer suitable duties when he is fit to return to work. Mr McIntosh has been offered the position of the occupational health and safety officer together with training under Mr Lamont. This is most commendable. 36 I accept the defendant has fully co-operated with the WorkCover investigation. 37 Mr Hewitt is the sole Director of the defendant. The defendant submitted given its size and structure any fine imposed will in effect be paid by Mr Hewitt. Similar circumstances have been considered by this Court. In Inspector Robins v CT Plumbing Pty Ltd (unreported decision, 16 December 1991, No. 522 of 1991), Fisher P said: . . . though technically the offence was due to a failure by a corporation, effectively and as a common sense matter, the penalty will be met by an individual and the penalty should be modified accordingly.

In Department of Mineral Resources of NSW (Chief Inspector Terrey ) v A M Hoipo & Sons Pty Ltd (2000) 99 IR 137, Walton J, Vice President said: 48. . . . it was submitted that as a matter of discretion the Court should take into account the financial circumstances of the defendant and the fact that its corporate structure was in reality a vehicle for Mr Hoipo's personal activities. In this regard, I note the judgment in Inspector Gordon v MIJO (NSW) Pty Limited ( unreported, Cullen J, CT1002 of 1993, 2 December 1993), in which his Honour commented (at p 5): "The Court does not have a discretion to consider the maximum penalty at some level other than that provided by the Statute. Where a corporation is involved, the appropriate maximum penalty is that applicable to a corporation and not to an individual regardless of how or why the corporation was established. The three judgments of the Chief Judge in Inspector Robins v CT Plumbing Pty Limited (unreported, Fisher CJ, No 522 of 1991, 16 December 1991), Mauger v Krcmar Engineering Pty Limited (1993) 47 IR 359 and Inspector Young v Hidane Pty Limited (unreported, Fisher CJ, CT 1113 of 1993, 30 September 1993), do not support this submission. Individual factors going to capacity to pay are not relevant in the determination of penalty. They may be relevant at a later time in terms of any application the defendant may make as to consideration of payment, but they are not relevant as to the determination of penalty." 49 I respectfully agree that the Court has no discretion to apply a maximum penalty other than that prescribed by the legislation: see also WorkCover Authority of New South Wales (Inspector Ankucic) v Lyndhurst Trading Co Pty Limited (2000) 95 IR 462. 50 It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see Sgroi v The Queen (1989) 40 A Crim R 197 at 200 - 201. and in Ferguson v Nelmac Pty Limited (1999) 92 IR 188, Wright J said (at 209) commented: . . . The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. 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. The penalty imposed will reflect the consideration given to this aspect as discussed above. I have also had regard to the submissions filed by the informant in respect of the additional affidavit and issues arising from it. Further, I have considered and applied the authorities referred to therein, particularly Haynes v C I & D Manufacturing at 457-458; Sgroi v R (1989) 40 A Crim R 197 and Rahme v R (1989) 43 A Crim R 81. Finally on this aspect, I indicate that I do not consider that the penalties imposed are beyond the means of the defendant. . . . 38 Even though the defendant is incorporated I accept it is an individually run business incorporated purely for the convenience of book-keeping and taxation arrangements. However, the defendant receives a financial benefit from that arrangement. The financial status of the defendant has been tendered. Ms Thomson submitted neither Mr Hewitt nor the defendant possess assets that would allow the payment of a substantial penalty without Mr Hewitt personally incurring great personal hardship. The Profit and Loss statement for the period ending 30 June 2005 reveals the defendant posted a profit of approximately $100,000, but that it also had a turnover of $5 million. I do not accept the defendant cannot meet any penalty imposed. 39 The defendant has no prior convictions, therefore, the maximum penalty is $550,000. 40 The defendant further submitted, in mitigation as to penalty, it entered an early plea of guilty to the charge. In the guideline judgment of Thomson, the Court of Criminal Appeal held the full benefit and discounts for the utilitarian value of an early plea of guilty should be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. The effect of Cameron v the Queen (2002) 187 ALR 65, on the guideline judgment in Thomson was considered by the Court of Criminal Appeal in R v Sharma (2002) 54 NSWLR 300. The Court of Appeal held that the reasoning in Cameron was not applicable in New South Wales because of the common law principles enunciated which have been modified by Statute, namely, s22 of the Crimes (Sentencing Procedure) Act 1999, which renders it mandatory that a sentencing judge take into account both "the fact" of the plea of guilty and "when" it was made.

41 In Thomson, the Court of Criminal Appeal held the full benefit of discount should be given for the utilitarian value of an early plea of guilty. The Court set up to 25 per cent as a percentage discount for such a plea. However, the High Court in Markarian gave further consideration to the method of applying discounts in any determination as to penalty. Markarian is authority for the proposition the penalty must reflect the objective and subjective elements of an offence and in some circumstance, with transparency, deduction could be allowed from penalty. 42 The prosecution supports the defendant's submission that in the circumstances this was a plea entered with a utilitarian value. I am satisfied the circumstances reflect an early plea of guilty was entered to the charge and as such should attract a discount for its utilitarian value. I allow a discount of 25 per cent for the utilitarian value of the plea of guilty entered on the charge. 43 I take into account the gravity of the offence and the relevant subjective features. It must be re-iterated it is imperative that the defendant who employs, to its credit, a significant number of trainees rigorously implements safe systems of work that promote best work practice. The obligation to trainees is to inculcate an awareness of and the practice of safe work principles to ensure through such training the principles for safe working will be carried into all construction sites into the future. 44 I find the defendant guilty. 45 The defendant is fined in the sum of $25,000.

Orders 1. In Matter No. IRC6332 of 2005, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $25,000 with a moiety to WorkCover Authority of New South Wales.

The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if there is no agreement, leave is granted to either party to approach the court for final orders as to costs.

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Occupational Health and Safety Act 2000(NSW)

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