Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd

Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 R v Cartwright (1989) 17 NSWLR 243 R v Chu (unreported, Court of Criminal Appeal, NSW, 16 October 1998 R v El Hani [2004] NSWCCA 162 CASES CITED: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Sacco Builders Pty Ltd v Inspector Chaston (2009) 188 IR 79 SZ v The Queen (2007) 168 ACrimR 249 T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; (2000) 49 NSWLR 700 WorkCover Authority (NSW) (Inspector Shaw) v Du Pont (Australia) Pty Ltd (2006) 152 IR 68

Ms L McManus of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr W Dalley of counsel (Defendant) Access Law Group

Prosecution under s 8(2) and s 26(1) of the Occupational Health and Safety Act 2000

INSPECTOR JOHN GJALTEMA v MJ BAKER CONSTRUCTIONS PTY LTD

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

1 MJ Baker Constructions Pty Ltd ("the corporate defendant") operates a business principally working as a subcontractor to builders. The corporate defendant had been contracted by Sebastian Builders and Developers Pty Ltd ("Sebastian Builders") to undertake carpentry work during the construction of a two storey residential duplex at 34 Kaluela Crescent, Kiama ("the site"). The corporate defendant performs carpentry work in small to medium residential subdivisions and the home renovation market in the Wollongong region in New South Wales. 2 Michael Errington ("the personal defendant") is a director of the corporate defendant. 3 On 27 March 2007, Mr Daniel Allen, a fourth year apprentice carpenter, commenced working with the corporate defendant. At the time he was indentured to the Master Builders Association of New South Wales Pty Ltd. At approximately 9.20 am on 30 April 2007, when attempting to install joist hangers at the site, Mr Allen fell 3.56 metres through an open penetration onto the concrete floor below. The terms "open penetration(s)", "void(s)" and "opening(s)" are variously used in the evidence and throughout this judgment. 4 Mr Allen suffered severe head injuries. The initial CT scan of his head showed fractures to the skull and contusion on the right side of the brain. Other injuries included a right pneumothorax, dislocated right ring finger and right ear injury. Mr Allen remained in hospital for approximately four weeks. Mr Allen was passed medically fit to return to work in October 2007. He returned to work in January 2008. He continues to suffer from the following: (i) loss of feeling in his lower limbs in that he cannot feel temperature due to scarring of his hyperthalmas;

(ii) impaired hearing in his right ear in that he cannot hear lower frequencies;

(iii) his right ring finger is fused at the top joint;

(iv) difficulties in concentration, language and fatigue;

(v) loss of balance and agility when playing sport, in particular soccer. 5 The corporate defendant, in an application for order, was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") with failing to ensure that people not in its employment, in particular Mr Allen, were not exposed to risks to their health or safety at work arising from the conduct of the corporate defendant's undertaking while they were at the corporate defendant's place of work. 6 The particulars to the charge were:

(a) at all material times the defendant was an employer;

(b) at all material times the defendant's undertaking was carpentry work and the construction of timber sections of a brick veneer two storey residential duplex which was being constructed on the site;

(c) the defendant failed to ensure that penetrations at the construction site and, in particular the penetrations in the ground floor level of Unit 2 of the dual occupancy duplex being constructed at the site, were guarded or secured in a manner that ensured that people working near the penetrations were not at risk of falling more than two metres through the penetrations;

(d) the defendant failed to ensure that there was a proper and appropriate inspection of the area in which persons were working, in particular the ground floor level of Unit 2 of the dual occupancy duplex being constructed at the site, so as to identify and rectify any risks associated with inadequately guarded or secured penetrations;

(e) the defendant failed to adequately identify the risks to persons working on the ground floor level of Unit 2 of the dual occupancy duplex being constructed at the site and to warn persons working in that area about the risk created by inadequately guarded or secured penetrations;

(f) the defendant failed to provide adequate access across the penetrations on the ground floor level of Unit 2 of the dual occupancy duplex being constructed at the site that ensured that people crossing the penetrations were not at risk of falling more than two metres through the penetrations. 7 The personal defendant, in an amended application for order, was charged with the same breach, by reason of the application of s 26(1) of the Act in that he was a director of the corporate defendant and is deemed to have committed the same offence. 8 Both defendants pleaded guilty to the offences with which they were charged. I am satisfied, on the evidence, that each defendant is guilty of the offence as charged, and that it was appropriate for pleas of guilty to be entered. It follows, therefore, that this judgment is concerned only with the question of penalty. 9 Ms L McManus of counsel, who appeared for the prosecutor, tendered agreed statements of facts in each matter which were in similar terms. The agreed statement of facts in respect of the corporate defendant provided: 3. Sebastian Builders and Developers Pty Ltd [ACN NO: 080 563 435] ("Sebastian"), is an incorporated entity whose registered office is situated c/- Bartlett & Cachia Accountants Level 1 13 Victoria St, Wollongong, in the State of New South Wales. 4. At all material times Sebastian carried on business of the construction and building of residential and commercial projects. At all material times Sebastian was undertaking the construction of a residential duplex Lot 24 DP 33901 known as 34 Kaleula Crescent, Kiama ("the site"). 5. The site was owned by Mr M Bellamy. 6. At all material times, Sebastian employed Mr Gregory Keith Smith as a project manager at the site. 7. At all material times the defendant contracted with Sebastian to perform carpentry and joinery services at the site including the flooring and construction of timber sections of brick veneer. The residential duplex consisted of Unit 1 and Unit 2. 8. The defendant employed approximately 3 to 4 persons at the site, and employed Mr Michael Errington as site manager and supervisor at the site at the time of the incident. At all material times Mr Michael Errington was also a director of the defendant. 9. At all material times the defendant sub-contracted Mr Dean Blachnig as a carpenter at the site. 10. At all material times, Master Builders Association of New South Wales Pty Ltd (MBA) [ACN 074 397 532] ("MBA") employed Daniel Allen as a fourth year apprentice carpenter. 11. Mr Allen had been indentured to the MBA for about 3 1/2 years prior to the incident, including the period he was working with the defendant. Mr Allen had commenced working with the defendant on 27 March 2007. Previously he had worked with another building company for about 2 years. 12. Mr Allen commenced working on the site on 5 April 2007 and also worked on the site on Monday 23 April 2007 and Monday 30 April 2007. 13. On 30 April 2007, Mr Allen was injured when he fell approximately 3.56 metres through an open penetration at the site. 14. Unit 2 of the duplex was on the south side of the site, being constructed in an east-west direction, with timber frame and curved roof trusses to the roof. 15. The ground floor of Unit 2 was split-level with the split occurring at approximately half way. The rear half of the floor area was 740 millimetres lower than the front half. The floor was constructed of particleboard. 16. There were two open penetrations on the ground floor, one at each level. The first penetration on the higher level was rectangular and measured approximately 2 metres by 1.025 metres. The second penetration on the lower level was L shaped with the longer sides measuring approximately 2.95 metres by 2.3 metres and an area of about 4.48 square metres. 17. There were no handrails around either open penetration but there were two timber wall frames around two sides of the open penetration on the higher level of the ground floor. 18. There was a manufactured timber I-beam measuring 300mm by 3.5 metres long lying on its side and over the open penetration on the higher level. This I-beam passed from the higher level to the lower level and was nailed to the floor on both levels. There were no handrails around this beam. 19. There was a concrete floor directly below both open penetrations. The height from the concrete floor to the floor level at the higher open penetration was approximately 3.56 metres. The height from the concrete floor to the floor level of the lower open penetration was approximately 2.82 metres. 20. Running along the northern brick wall was a trestle and single plank scaffold system comprising two steel trestles and a 300 mm wide timber I-beam lying on its side used as a plank ("trestle scaffold"). The scaffold was approximately 1.2 metres high off the floor level. The trestle scaffold passed over the open penetration on the lower level and the height from the concrete floor below to the plank was 4.02 metres. There were no handrails on the trestle scaffold. THE INCIDENT 21. At approximately 7:00am on 30 April 2007, Mr Errington, Mr Blachnig and Mr Allen arrived at the site. At this time there were no other subcontractors on the site. Mr Errington and Mr Blachnig installed roof battens and eaves soft linings to the raised roof area of the unit. Mr Allen cut fibro and timber on the floor of Unit 2 and passed up the materials to Mr Errington and Mr Blachnig on the roof. This work was completed at approximately 9.00 am. 22. Mr Blachnig and Mr Errington then started work on the roof trusses on the lower level of the ground floor at the rear of Unit 2, approximately ten metres from Mr Allen but they did not have him in sight. Mr Allen was working alone at the entry of Unit 2. 23. Mr Blachnig stated that he instructed Mr Allen to nail joist-hangers near the entry of Unit 2. He instructed Mr Allen to use a nail air gun and a stepladder. The stepladder was on the higher level of the ground floor, near the entry by the front door. Mr Blachnig stated that he saw Mr Allen working at that location about 10 to 15 minutes before the incident. 24. Mr Allen stated that he was standing on the plank of the trestle scaffold prior to the fall, nailing triple grips (metal brackets that prevent ceiling joints from twisting). 25. At approximately 9.20am Mr Errington and Mr Blachnig heard a noise. They turned around and they saw the air gun hose that Mr Allen had been using leading into the open penetration on the higher level. Mr Errington and Mr Blachnig immediately made their way to the open penetration and saw Mr Allen lying on the concrete below. Mr Allen had apparently fallen through the upper level penetration to the concrete floor below. Mr Allen was unconscious. 26. Although Mr Blachnig and Mr Errington were working close to where the incident occurred, they did not observe the incident. Mr Allen stated that he could not recall falling. He said that prior to the incident he had been standing on the trestle scaffold to nail joist hangers. It is unknown where Mr Allen was standing when he fell. 27. Mr Errington and Mr Blachnig got down to Mr Allen to assist him. First aid was applied immediately after the incident and ambulance officers were called to the scene. Mr Allen was taken by helicopter to Wollongong Hospital. 28. As a result of the incident Mr Allen sustained severe head injuries. The initial CT scan of his head showed fractures to the skull and contusion on the right side of the brain. Mr Allen was taken to surgery for a right temporal craniotomy. Other injuries included a right pneumothorax, dislocated right ring finger and right ear injury. On the 24 May 2007 Mr Allen was transferred from Wollongong Hospital to the Brain Injury Rehabilitation Unit, Liverpool Health Service for inpatient rehabilitation. Mr Allen was in hospital for approximately four weeks. Seven months after the incident Mr Allen was still unable to return to work. 29. Mr Allen was passed medically fit to return to work in October 2007. He returned to work in January 2008. Mr Allen stated that he continues to suffer from the following: - i. Loss of feeling in his lower limbs in that he cannot feel temperature due to scarring of his hyperthalmas; ii. Impaired hearing in his right ear in that he cannot hear lower frequencies; iii. His right ring finger is fused at the top joint; iv. difficulties in concentration and language and suffers fatigue; v. a loss of balance and agility when playing sport, in particular soccer. 30. At about 11.05 am on 30 April 2007 Inspector John Patton of WorkCover attended the site and later prepared a Factual Inspection Report dated 3 May 2007. At about 11.18am on 30 April 2007 Inspector Wayne Cobbin of WorkCover attended the site with Inspector Brett Jurmann. Inspector Cobbin took a number of photographs. 31. Inspector John Gjaltema attended the site at about 2pm on 30 April 2007. SYSTEMS OF WORK PRIOR TO THE INCIDENT 32. The finished particleboard flooring to both the upper and lower floors on the ground level of Unit 2 were laid by the defendant approximately two weeks prior to the incident on 30 April 2007. The penetrations remained open for about two weeks prior to the incident. When the defendant returned to the site no handrails had been erected around the penetrations and the penetrations had not been covered over in any way. 33. When interviewed by Inspector Gjaltema Mr Errington stated that the open penetrations were not guarded or covered because to do so would limit access for the movement of materials onto the site and onto the lower level of the ground floor of the site. 34. Both the defendant and Sebastian dispute whose responsibility it was to provide and install protection for the penetrations at Unit 2. 35. Mr Errington stated that the defendant's contract of works did not include the installation of temporary handrails. He stated that the quote to complete carpentry on the site states that any handrails, either temporary or permanent, was an extra to the contract price. 36. Before the incident, Mr Smith was aware that there was a risk to health and safety from unsecured open penetration in Unit 2. He stated that Mr Errington had told him that the defendant did not put fall protection in around the penetrations because the defendant intended to drag large timber frames for the windows through the area. 37. Mr Smith stated that it was the defendant's responsibility to install fall protection around the penetrations as per their safe work method statement. 38. Mr Errington constructed the I-beam across the open penetration on the higher level when the floor was completed. This is shown in photographs 4 and 30. The I-beam was used for access and egress from the higher level to the lower level of the site. No handrail around this beam was provided. 39. The trestle scaffold running along the northern brick wall was erected by Mr Errington. This is seen in photograph 4, 5 8, 9, 13 and 14. No fall protection was provided even though there was a risk of falling 4.020 metres from the plank to the concrete floor below. Danger tags or warning signs were not used to prevent unauthorized access to the scaffold. 40. Mr Allen was not advised to wear or required to wear fall protection. 41. Both the defendant and Sebastian had various policies and procedures in place to cover the work being carried out at the site on the day of the incident. 42. Sebastian's policies and procedures included a Site Specific Occupational Health and Safety Management Plan for the site. This plan covered all aspects of work to be carried out on the site. 43. The Site Specific Occupational Health and Safety Management Plan included the roles and responsibilities for the project manager and site foreman. Among other duties, the Project Manager was to ensure that all reasonable and practicable steps were taken to ensure inductions were carried out; to develop implement and monitor and the site specific OHS&R Plan and to conduct regular inspections of the areas and work practices under the control of the project manager. Among other roles, the site foremen was to ensure that all employees and trades/subcontractors were appropriately inducted prior to commencing work on the project; to ensure the implementation of and compliance with the site specific OHS Management Plan and to ensure that hazards were identified, using work methods that will eliminate, minimize or control hazards. 44. The Occupational Health and Safety Management Plan incorporated a Risk Assessment - Safe Work Method Statement. Under the heading "Part 1 Task Activity", item 4 detailed the requirement to "conduct site specific inductions". Under the heading "Part 4 Risk Control" was stated "Site specific inductions are carried out for all personnel." Mr. Smith stated that Sebastian had a policy that on small projects they did not do safety inductions but relied on subcontractors to induct their staff through a tool box talk relating to the relevant subcontractors safe work method statement. 45. Mr Allen was not provided with a site-specific safety induction or risk identification by Sebastian. He did not complete a Sebastian Builders Site Induction Registration Form. He did not sign the Site Specific Induction Employee Register. 46. A requirement for weekly documented site inspections was contained in the Occupational Health and Safety Management Plan. Mr Smith stated that only one safety inspection had been carried out and this was "visual only of unit 1" and that no person had carried out a safety inspection of unit 2 since the floor had been laid. Mr Smith stated that, despite the Occupational Health and Safety Management Plan, whether site inspections were held on a weekly basis was up to the Project Manager's discretion. 47. Section 3.6.2 of the Occupational Health and Safety Management Plan contained a Risk Assessment - Safe Work Method Statement. Under the heading "Part 1 Task Activity", item 5 detailed "Provide safe access and egress". Under the heading Part 4 Risk Control it stated: "Safe access to work areas is available and maintained at all times with good housekeeping practices enforced." Mr Smith stated that provision of safe access and egress was the responsibility of the defendant. He indicated that the method he used to ensure that safe access and egress was provided was to assess the Safe Work Method Statement submitted by the subcontractor at the commencement of the job. He had not entered Unit 2 since the floor was completed. 48. The defendant's policies and procedures included a Safe Work Method Statement and a Carpentry Safety Policy. 49. The Safe Work Method Statement covers the work being performed on the site in general terms. Mr Errington and Mr Blachnig had been inducted into the Safe Work Method Statement on 1 March 2007. Mr Allen had not received this induction. The Safe Work Method Statement, at item 3, specifically mentions "Handrails to openings" as a control for the potential hazard of falls from top plates. 50. The defendant's Carpentry Safety Policy indicates that employees will attend Tool Box Talks regularly to assist in hazard identification and the development of controls to eliminate or minimize the risk. There are no records of tool box talks for the two weeks up to and including the date of the incident. 51. There was no discussion between the defendant and Sebastian regarding the identification of the risks of the inadequately guarded or secured penetrations in Unit 2 and controls to eliminate or minimize this risk. SYSTEMS OF WORK AFTER THE INCIDENT: 52. The defendant engaged the South Coast Contractors Association to upgrade its occupational health and safety procedures. An Occupational Health Safety and Rehabilitation Policy has been produced which explicitly outlines the role of the site foreman to include site inspections using a checklist. 53. The following measures regarding securing the open penetrations in Unit 2 were taken: • Handrails were constructed to secure the open penetration on the lower level • A ramp was constructed to completely secure the open penetration on the higher level and allow safe access and egress on the site • Handrails were installed to the open rear doorways of the first floor. 54. After the incident, Sebastian conducted an investigation into the circumstances of the incident. 55. After the incident Sebastian revised and changed its Occupational Health and Safety Management Plan. Subcontractors are now required to provide documented evidence that all the relevant subcontractor's employees have been inducted and signed the relevant SWMS. 56. Sebastian complied with the two Prohibition Notices and four Improvement Notices that were issued by WorkCover inspectors on the date of the incident. RISK ASSESSMENT 57. Prior to the incident the defendant failed to ensure that there was a proper and appropriate inspection of the area in which persons were working so as to identify and rectify any risks including inadequately guarded or secured penetrations. Only one site inspection was performed jointly by the defendant and Sebastian at the beginning of the job to discuss how to proceed and what access and scaffold would be required to do the job. 58. Prior to the incident the defendant held tool box meetings but did not discuss or identify the risk created by inadequately guarded or secured penetrations, did not warn persons working in that area about the risk and did not implement controls to minimize or eliminate the risk. 59. After the incident, the defendant established a policy for site-specific induction, for an employee-training program including regular toolbox meetings and a program of ongoing site inspections. 60. Prior to the incident Sebastian failed to make or ensure that there was a proper and appropriate inspection of the area in which persons were working so as to identify and rectify any risks including inadequately guarded or secured penetrations. 61. Prior to the incident Mr Smith met with Mr Errington about the progress of work at the site but did not discuss or identify the risk created by inadequately guarded or secured penetrations, did not warn persons working in that area about the risk and did not implement or ensure the implementation of controls to minimize or eliminate the risk. 62. After the incident, Sebastian closed the site and all other sites on which it was operating and conducted site inspections to rectify any risks to health and safety.

10 The prosecutor also tendered the following documentation: (i) a Factual Inspection Report of Inspector John Patton dated 3 May 2007; (ii) 33 colour photographs taken by Inspector Brett Jurmann and Inspector Wayne Cobbin dated 30 April 2007 showing the open penetration or void between the upper level and first floor at the site, makeshift working platform adjacent to the open penetration, the concrete floor where Mr Allen landed and various angles of the partially built premises; (iii) three colour photographs taken by Inspector John Gjaltema on 31 May 2007 showing fall protection put in place after the incident and a ramp covering the penetration that Mr Allen fell through; (iv) Floor Plan and set out of Dual Occupancy Development at Lot 24, 34 Kaluela Crescent Kiama; (v) MJ Baker Constructions Pty Ltd Safe Work Method Statement dated 1 March 2007; (vi) quotation for work on Proposed Development at site by MJ Baker Constructions Pty Ltd dated 14 November 2006; (vii) Prior Conviction Record for MJ Baker Constructions Pty Ltd and Mr Errington. The defendants have no prior convictions. 11 Ms McManus called Inspector John Gjaltema to assist the Court in understanding what was depicted in each of the photographs tendered by the prosecutor.

Defendants' evidence 12 Mr W Dalley of counsel, who appeared for the defendants, read affidavits of Michael Errington, the sole director of the corporate defendant, who was required for cross-examination, and Dean Benjamin Blachnig, a qualified carpenter and employee of the corporate defendant who was working at the site on the day of the incident. He was not required for cross-examination, Mr Dalley sought that evidence in the corporate defendant's case be also evidence in the personal defendant's case. 13 In his affidavit, Mr Errington detailed his work history, stating that he commenced an apprenticeship in carpentry and joinery in 1979 and had been engaged in the building industry, principally in the carpentry trade, since that time. He commenced working with Mr James Baker and Mr Mark Baker in a partnership in or around 1994. The partnership was incorporated on or about 23 May 2003 as MJ Baker Constructions Pty Ltd. Mr James Baker resigned as a director of the corporate defendant in or around June 2007. Mr Mark Baker left the partnership in 1998, prior to its incorporation. 14 Mr Errington stated that the corporate defendant provided contracting services to many builders throughout the Illawarra area. This included work for, as Mr Errington described, "the different Sebastian companies". It is an agreed fact that Sebastian Builders carried on the business of the construction and building of residential and commercial projects. This company was undertaking the construction of a residential duplex at the site when the incident occurred. At the time of the incident, a little less than 50 per cent of the corporate defendant's business was provided by the Sebastian companies. 15 The corporate defendant was engaged to undertake the wall, roof and floor framing and the internal fit out at the site. No materials were to be supplied by the corporate defendant and the quote provided was for labour only. A copy of the written quotation provided to Sebastian Builders was annexed to the affidavit. 16 Mr Errington annexed a copy of the Safe Work Method Statement ("SWMS"), which was created by the corporate defendant for the purposes of performing work on the project at the site. 17 Mr Allen commenced working with the corporate defendant approximately one month after it commenced work at the site. He did not participate in the company's SWMS Review Activity Process, this being due to an oversight by Mr Errington. 18 Mr Errington stated that the site was managed by Mr Gregory Smith, the Project Manager for Sebastian Builders. Mr Errington reported to Mr Smith who attended the site at least every second day and would undertake an inspection of the site, look at the progress of work, give directions and make comments. Mr Errington stated that the relationship with Mr Smith was initially on good terms. However, he said that he had cause to complain to Mr Frank Sebastian jnr regarding aspects of Mr Smith's performance approximately one week before the accident. 19 His evidence was that he complained to Mr Sebastian jnr that Mr Smith had not made appropriate arrangements in relation to the site's amenities (toilets, etc), general housekeeping and tidiness of the site, to allow access and egress by trades to the site and the general lack of scaffolding at the site, particularly around the perimeter of the walls and of Unit 2. His evidence was that he had several discussions on site with Mr Smith about these matters and regularly asked him "where is the scaffold Greg?" Mr Smith's response was "it's coming." 20 Mr Errington stated that scaffolding was essential to the construction of Unit 2, particularly because the site sloped down from the road and Unit 2 was located to the right of Unit 1. He said the intention was that the void areas, which Mr Allen fell through, were to be filled with stairways which were to provide access to the ground floor. The scaffolding would have filled the void so that anyone falling would only have fallen onto the planking of the scaffolding and not the additional two metres to the concrete floor. 21 After completing the ground floor framing, the corporate defendant left the site for approximately two weeks while other trades worked on the project. Mr Errington's evidence is that during this period he told Mr Smith that it was necessary to have scaffolding put in place on the perimeter of Unit 2 as the void area adjacent to the front door was approximately 3.5 metres to 3.6 metres above ground level. Mr Errington stated that had Mr Smith arranged for the scaffolding to be placed in this area, it would have provided fall protection for Mr Allen. 22 Monday 30 April 2007, the day of the incident, was a rostered day off in the building industry. Mr Errington said that he had planned to attend the site on that day to complete some work and asked Mr Blachnig to assist him. There were no other employees required to attend that day. Mr Allen's arrival at the site surprised Mr Errington. Mr Errington said that, in retrospect, he could now see that he did not treat the day as a normal work day. He had not thought of conducting a toolbox meeting because he did not expect anyone other than Mr Blachnig to be on site. 23 Mr Errington described the work allocated to Mr Allen and stated that he did not turn his mind to the safe method of performing the particular job. It is an agreed statement of fact that Mr Blachnig instructed Mr Allen to nail joist hangers near the entry of Unit 2, using a nail air gun and a stepladder. Mr Errington accepted that he did not tell Mr Allen what he thought was the best way to approach this work, nor did he enquire what directions Mr Blachnig had given Mr Allen as to how to approach this particular system of work. 24 Mr Errington described hearing a "thud" at approximately 9.20 am on the day of the accident and finding Mr Allen unconscious. He immediately rang an ambulance which arrived within half an hour, together with police and an inspector from the WorkCover Authority of NSW ("WorkCover"). Mr Errington was questioned both by police and the WorkCover investigators and provided them with as much assistance as he could. His understanding was that Prohibition Notices and Improvement Notices were issued to Sebastian Builders on the afternoon of the incident. 25 Mr Errington stated that he was deeply remorseful and very much regretted that the incident occurred. He said his understanding of workplace safety standards at the time of the incident was lacking and that he should have been more aware of the risks associated with the worksite. Mr Errington acknowledged that he could have provided Mr Allen with better instructions on the day and, particularly given that he was an apprentice, he should have spoken with him about how he proposed to carry out the work, and should have assessed whether his approach to installing the joist hangers was the safest possible method. He said he should also have insisted that prior to any work being performed near the open penetration area that Sebastian Builders insert scaffolding in the void areas to ensure adequate fall protection. He regretted that having been aware of the presence of the void on the morning of the incident, that he did nothing to follow this up. 26 The corporate defendant contributed $2,000 to a union appeal on Mr Allen's behalf. Mr Errington said that Mr Allen participated in group discussions in the form of toolbox meetings at the site and that approximately one week before the incident he had a discussion with him about safety while working at the Illawarra Grammar School site. Mr Errington accepted that even if handrails had been installed around the void, they would not have prevented the accident because the work which was required to be carried out was above and past the edge where the rail would have been placed. In Mr Errington's opinion, the fall occurred because of the existence of the opening which was not covered and the lack of a restraint harness on Mr Allen to prevent his falling. 27 Mr Errington described his personal circumstances. He has three children aged between 6 and 16. Approximately 14 months ago, he separated from his wife, caused to a great extent, he said, because of this incident. In June 2009, his former wife was diagnosed with breast cancer and he moved back into the matrimonial home where he remains to provide care and support for her and the children. She has had to undergo chemotherapy and radiotherapy after a radical mastectomy. 28 Mr Errington stated that his income is approximately $800 per week net. He does not have any debts or liabilities and his only personal asset is his superannuation. Mr Errington also set out his gross and net income for the past four years and that of the corporate defendant, together with its assets and liabilities. As no application was made in respect of s 6 of the Fines Act 1996, I do not propose to set out this evidence. 29 Following the accident, Mr Errington participated in a number of courses run by WorkCover, including site specific workshops. Annexed to his affidavit were details of the courses he attended and copies of the certificates he received. Mr Errington stated that he gained far more insight into his role and responsibilities as an employer under the Act as a result of participating in these programs, particularly what was described as a mentor program where an employee of BlueScope Steel Ltd acted as his mentor. He stressed that he was deeply sorry and remorseful for the injuries that Mr Allen suffered. He undertook to continue enrolling in peer and mentor based work safety programs in the future. 30 In cross-examination, Mr Errington said that if scaffolding had been installed properly at the site, there would have been a scaffold underneath the void through which Mr Allen fell. It would not have prevented the fall, but it would have resulted in there being less distance to fall and would have been within the WorkCover guidelines for fall protection of two metres and above. Mr Errington was unable to say whether scaffolding should have been installed in the stairwell void. Mr Errington confirmed that he had a labour only contract with Sebastian Builders and he did not supply any materials. He accepted that he placed the I-beam over the void, but said that the material used for this was already on the site. He accepted that he could have covered the voids with material that was on the site. 31 Ms McManus took Mr Errington to the SWMS which provided for "Handrails to openings" and he gave the following evidence: Q: What do you say about that? A: It is in there but you as far as this particular site goes this is a fairly generic work method statement although we were inducted to it at the time I was under the understanding that we were not to be installing those handrails as part of our contract and that any materials or labour that would be involved in that work would be either paid for or supplied by Sebastian Builders.

32 Mr Errington said that he visited Mr Allen in hospital on at least one occasion after the accident. He also spoke to Mr Allen's parents and said that he was willing to do anything he could to assist them and Mr Allen in his recovery. 33 Mr Blachnig stated in his affidavit that he has been a qualified carpenter since 1996 and a licensed builder since 2003. He began working with the corporate defendant in or around October 2006 as a subcontractor/carpenter. He worked at the site where he said the head construction contractor was Sebastian Builders. He had worked at the site for approximately seven non-consecutive days prior to the incident. 34 Mr Blachnig stated that he was introduced to Mr Allen while working at the site and formed the opinion that he was quite competent and willing to learn. Mr Allen followed directions quite well and was friendly. 35 Mr Blachnig described attending the site on 30 April 2007 to continue work on Unit 2 in the complex. His evidence was he read and signed the corporate defendant's SWMS for the site and was inducted by Mr Errington on the SWMS. 36 At the time of Mr Allen's accident, Mr Blachnig was working at the rear of the site and could not see Mr Allen. He was first alerted to the accident when he heard a nail gun drop to the floor. 37 Immediately before the accident, Mr Blachnig said he gave instructions to Mr Allen to nail joist hangers at the front of the dwelling in Unit 2. He gave him a stepladder and a nail coil gun. Mr Blachnig's evidence was that he was never asked to install handrails or provide any other fall protection for the stairwells or the openings for doors and windows at the site. He said that there were no safety concerns raised before the accident and he personally did not have any safety concerns before the accident. Relevant principles 38 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: "[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t 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' ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.'

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.'

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. 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, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).'

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.'

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' " Consideration 39 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences, as set out in the agreed statements of facts, and the evidence. Without repeating what is contained in the agreed statements of facts, in considering the seriousness of the offences, it is relevant to set out some of the important matters. 40 The corporate defendant entered into an arrangement with Sebastian Builders to undertake the wall, roof and floor framing and internal fit out of a residential duplex at the site. No materials were to be supplied by the corporate defendant and the quote provided was for labour only. The offences occurred in circumstances where no handrails had been erected around the open penetration and the penetration had not been covered or guarded in any way. Furthermore, Mr Allen had not been advised to wear, or required to wear fall protection or a safety harness while working in the vicinity of the penetration. The flooring had been put in place approximately two weeks prior to the incident. It follows that the open penetrations had been in existence for at least this period prior to the incident. The distance from the concrete floor below to the lowest of the openings was 2.85 metres. The distance from the concrete floor below to the upper opening was 3.56 metres. The personal defendant placed an I-beam across the higher level of the open penetration. The I-beam was used to allow access and egress from the higher level to the lower level of the site. Trestle scaffolding consisting of a plank on a trestle ran along a wall without protection. The distance between the concrete floor and the plank was 4.02 metres. 41 Clearly, the absence of any safety measures in respect of the void created an obvious and foreseeable risk to the safety of all persons working in the vicinity of the void. The risk that a person could fall through these voids was obvious. The corporate defendant was aware of the risk and the personal defendant stated that he asked the principal contractor for scaffolding to be erected. 42 Furthermore, Mr Allen was an apprentice at the time of the incident. He commenced working at the site almost a month after the defendants were engaged at the site and did not participate in the company's SWMS Review Activity Process. This was due to an oversight on the part of the personal defendant. In addition, there was no toolbox meeting prior to work commencing on the day of the incident. 43 In my view, the defendants' failure to ensure that there were barricades or handrails around or over the voids, together with the failure to provide a safety harness must result in these offences falling within the more serious class of cases that come before this Court. Mr Dalley conceded that "the situation is quite plainly a dangerous one, ... the two unguarded openings and Mr Errington has come to recognise that." 44 It follows that there was a complete lack of attention to safety on the day of the offences. Mr Allen was instructed to carry out work near a void without supervision or explanation as to how such work could be safely carried out near a void which remained unprotected and exposed. No risk assessment had been undertaken in respect of the work that was to be performed by Mr Allen. Although the corporate defendant had prepared a SWMS for the site which identified "Handrails to openings" under the heading "Controls", the defendants failed to comply with this statement. In addition, it was deficient in that it failed to adequately identify, assess, eliminate or control the risks arising from unguarded voids. Its contents were not made known to Mr Allen. 45 The distance of the fall was 3.56 metres. The risk was easily avoidable either by barricading the void, as occurred after the incident; providing Mr Allen with a safety harness, and giving clear instructions that the work was only to be carried out with the use of a safety harness. There is also the consideration that Mr Allen sustained serious injuries and perhaps was fortunate to have survived the fall. Such considerations manifest the overall objective seriousness of the offences. 46 The simple remedial steps taken after the accident further highlight that the risk was easily avoidable. 47 The following measures regarding securing the open penetrations at the site were taken: (i) handrails were constructed to secure the open penetration on the lower level; (ii) a ramp was constructed to completely secure the open penetration on the higher level and allow safe access and egress on the site; (iii) handrails were installed to the open rear doorways of the first floor. 48 After the incident, Sebastian Builders conducted an investigation and revised and changed its Occupational Health and Safety Management Plan. Subcontractors are now required to provide documented evidence that all the relevant subcontractors' employees have been inducted and have signed the relevant SWMS. 49 Sebastian Builders complied with the two Prohibition Notices and four Improvement Notices that were issued by WorkCover inspectors on the date of the incident. 50 As to general deterrence, I consider it is appropriate in the case of both defendants to once again draw attention to the need for employers and contractors in the Building and Construction Industry, particularly small to medium sized employers and contractors working on residential subdivisions and who also carry out renovation work on homes, to be constantly vigilant of the need to ensure that workers are not exposed to risks of falling through open penetrations. Such open penetrations should be barricaded, handrails provided and/or fall protection put in place in areas around stairwell voids. Safety harnesses should also be provided. 51 I respectfully adopt the observations of her Honour Backman J in Inspector Braddick v Connex Sydney Pty Ltd (known as Veolia Transport Sydney Pty Ltd) [2007] NSWIRComm 208 where her Honour stated at [10]: General deterrence is also an important consideration in the circumstances. The risk of falling is an all too common feature of many occupational health and safety prosecutions in this jurisdiction. Many of those prosecutions have involved serious injuries (and sometimes fatalities) which in many cases could have been avoided by the implementation of relatively straightforward protective measures. As in the present circumstances the evidence which emerges from those prosecutions is that the risk of falling is often obvious and foreseeable. These matters highlight once again the need to alert employers who operate in industries where workers work at heights to the importance of ensuring the implementation of safe work practices, of safe training regimes and of conducting proper risk assessments in relation to the searching out and detection of any unsafe plant, hazards, practices or operations which might or could expose workers to the risk of falling: see WorkCover Authority of New South Wales (Inspector Robert Mayell) v DJ Gleeson Pty Ltd [2006] NSWIRComm 363 at [27], [28]. 52 Subsequently, in sentencing defendants in a not dissimilar case after referring to the above passage, her Honour observed in Inspector Dimitri Barlas v C & J Carpentry & Construction Pty Ltd and Others [2009] NSWIRComm 127 at [17]: The principle assumes greater significance where trainees such as Mr Tarabay perform work at construction sites. Mr Tarabay was inexperienced and had only been "on the job" for some four weeks. He was exposed to serious risk to his safety by reason of the failure of his employer and his supervisors to implement adequate and appropriate safety measures. This issue has been addressed in a number of judgments in this jurisdiction which have dealt with serious injuries to young and/or inexperienced workers in circumstances where injuries could have been avoided by the implementation of, and attention to, simple and readily available measures: see Inspector Garg v Precision Valve Australia Pty Ltd [2006] NSWIRComm 142; Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49; Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 at [36]; Inspector Colin Price v Hunter Galvanizing Pty Limited ; Inspector Colin Price v Kerry Bartholomew [2006] NSWIRComm 43 at [13]; Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 at [47] [51] [52]; T & M Industries Pty Ltd v Inspector James [2007] NSWIRComm 85 at [18] to [20]; Inspector Melissa Chaston v Sacco Builders Pty Ltd & Others [2008] NSWIRComm 152 at [15] to [28]; 53 In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383, a matter that involved young workers who were exposed to risks to their safety, Walton J observed at 230: ... In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers. ... 54 I have, therefore, included an element in the penalty for general deterrence. 55 In relation to specific deterrence, I accept that these are not cases that call for the imposition of some additional significant punishment aimed at deterring the defendants from further offending against the Act and/or for the purpose of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. 56 Mr Dalley submitted that after the incident, Mr Errington read many of the judgments of Members of this Court dealing with falls in the Building Industry. He was struck by the number of cases where employees had fallen through unguarded openings. It was submitted that Mr Errington now recognises that there must be disapproval of such situations, even when there is inequality when the small contractor has been tempted to say "we will not object to that" because they feel they will not get the work. Counsel acknowledged on behalf of the defendants that "regard must be had to safety." 57 Each defendant has an unblemished record in what is a notoriously dangerous industry and both have taken appropriate steps to avoid a recurrence of the offences. However, both defendants continue to operate in the Building and Construction Industry and so a small element of penalty in each case is in consideration of the need for specific deterrence. 58 Although Members of this Court have observed on numerous occasions that the Parliament passed laws requiring employers and non-employers to ensure the health and safety of their employees and non-employees as long ago as 1983, the Court, once again, expresses its regret that it continues to be called upon to hear charges brought pursuant to the Act in respect of risks such as have occurred in this case which were so obvious and where, for whatever reasons, no steps were taken to avoid such risks. 59 As I have observed, the defendants have no previous convictions under the Act. Accordingly, the maximum penalty for the corporate defendant is $550,000 and for the personal defendant $55,000. 60 It is important that careful attention is given to the maximum penalty in determining sentence. In Sacco Builders Pty Ltd v Inspector Chaston (2009) 188 IR 79, the majority observed as follows at [55]: Recently, Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92, in an extensive review of the principles applicable in occupational health and safety sentencing matters, observed in respect of determining the maximum penalty as follows at [192]:

In Morrison v Powercoal (2005) (at [16] and [17]), the Full Bench observed that a fundamental consideration in determining penalty is the maximum penalty for an offence. In R v Moon (2000) 117 A Crim R 497 at [70], Howie J described "the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence" as being "crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed". Wright J, in Walco (at [23]), described the task of the Court in sentencing as "assessing the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided" (see Independent Cargo at 4). Ultimately, maximum penalties will have significance in sentencing in accordance with the statement of the High Court of Australia (per Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case...

And at [56]: ... It is most important that sentencing under any regime be done against the maximum penalty, not on the basis of what is thought to be fair in any case. 61 The relevant subjective factors relating to the personal defendant include a plea of guilty, although not entered at the first opportunity. Initially a plea of not guilty was entered. However, the prosecutor accepted that the plea of guilty had utilitarian value and that a large amount of preparation undertaken by the prosecutor had been in respect of Sebastian Builders, who has pleaded not guilty and not in relation to the defendants in this matter (the trial in respect of Sebastian Builders is programmed to follow judgment in these matters). I propose to allow a discount of 20 per cent for the plea. The personal defendant co-operated with WorkCover in its investigation of the breach and has taken steps to avoid a breach recurring.

62 Ms McManus informed the Court that the personal defendant would be called to give evidence for the prosecution in the matter involving Sebastian Builders and that consideration should be given to this fact. Section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose on a defendant having regard to the degree of assistance rendered to law enforcement authorities. It is clearly in the public interest for offenders to co-operate with authorities and give evidence against other offenders alleged to have committed offences against the Act. 63 In SZ v The Queen (2007) 168 ACrimR 249, the Court held that the component of the discount for future assistance needs to be quantified with a degree of precision. This enables the parties to know exactly what the position is and will also enable an appellate Court to deal appropriately with any review brought by the Crown in the event that such promise is not fulfilled (at [51]). The Court also referred to R v El Hani [2004] NSWCCA 162 (at [43]) where it was observed "the range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent." The cases usually cited for such a range include R v Cartwright (1989) 17 NSWLR 243; R v Chu (unreported, Court of Criminal Appeal, NSW, 16 October 1998). I propose to allow a discount, taking into account the future assistance to be provided by the personal defendant of 40 per cent. 64 The personal defendant has also gone to extensive lengths to inform himself of the obligations arising under the Act, including reading numerous judgments of this Court. He has expressed genuine contrition and provided some financial assistance to Mr Allen. The personal defendant may be regarded as a good citizen. 65 In relation to the corporate defendant, I take into account the plea of guilty entered at the same time as the personal defendant. For the reasons given earlier, I propose to allow the same discount for its utilitarian value. I also take into account that the corporate defendant co-operated with WorkCover and its contrition. I did not have the benefit of argument by counsel if any discount provided to the personal defendant for future assistance to the prosecutor should also apply to the corporate defendant. Both defendants received discounts for the utilitarian value of the plea and for co-operation with the prosecutor. I see no basis as to why the additional discount for future assistance should not also apply to the corporate defendant. 66 I also take into account the steps taken to avoid the breach recurring. In this respect, the corporate defendant engaged the South Coast Contractors Association to upgrade its occupational health and safety procedures. An Occupational Health and Safety Rehabilitation Policy has been produced which explicitly outlines the role of the site foreman to include site inspections using a checklist. The corporate defendant may be regarded as a good corporate citizen. 67 Although the personal defendant gave evidence of his financial position and that of the corporate defendant, no application was made that I should have regard to s 6 of the Fines Act 1996 in assessing either defendants' capacity to pay. In any event, the material produced fell far short of what is required for such an application. However, I accept that the corporate defendant is a small company without substantial net assets and that any fine imposed on the corporate defendant will directly impact on the personal defendant. 68 Mr Dalley made an application for the exercise of the Court's discretion under s 10(2) of the Crimes (Sentencing Procedure) Act 1999 on behalf of the personal defendant. Section 10 of the Crimes (Sentencing Procedure) Act is in the following terms:

10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 69 The application of this section has been considered by a number of Full Benches of this Court. See WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; (2000) 49 NSWLR 700; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449; WorkCover Authority (NSW) (Inspector Shaw) v Du Pont (Australia) Pty Ltd (2006) 152 IR 68; T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130. 70 These authorities provide that s 10 Crimes (Sentencing Procedure) Act will be available only in rare and limited circumstances in proceedings under the Act. In Profab, for example, the Full Bench stated at [26]: Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 71 Shortly stated, the personal defendant is required to advance extenuating circumstances in which the offence was committed. This may include evidence as to age, health, or mental condition, all being matters I am required to have regard to pursuant to s 10(3) of the Crimes (Sentencing Procedure) Act 1999, in addition to antecedents and whether the offence was trivial, together with any other matters that the Court may regard as relevant to consider. 72 In light of the objective seriousness of the offence, and the lack of exceptional or extraordinary matters, there is no proper basis for the exercise of my discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999. 73 In relation to the personal defendant, I have decided, having regard to all the circumstances, that an appropriate penalty is $5,000. 74 In relation to the corporate defendant, I have decided, having regard to all the circumstances, that an appropriate penalty is $50,000. I should observe that the penalties would have been greater but for the matters raised by the personal defendant, particularly that the corporate defendant is a small company, the steps that it took immediately after the accident, and the foreshadowed assistance to be provided to WorkCover. ORDERS 75 I make the following orders: In matter No IRC 410 of 2009 - Inspector John Gjaltema v Michael Errington: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $5,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed. In matter No IRC 412 of 2009 - Inspector John Gjaltema v MJ Baker Constructions Pty Ltd 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $50,000 with a moiety thereof to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

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