[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]: