Inspector Gjaltema v Sebastian Builders & Developers Pty Ltd

Industrial Relations Commission (NSW)|2010-10-13|Before: Staff J

CITATION: Inspector Gjaltema v Sebastian Builders & Developers Pty Ltd [2010] NSWIRComm 144

PARTIES: Inspector John Gjaltema (Prosecutor) Sebastian Builders & Developers Pty Ltd (Defendant)

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 - building industry - residential property - fall - open penetration - defendant ceased operating - general and specific deterrence - principles - late plea of guilty - principles - maximum penalty - principles - comparison of sentences - principles - assistance provided to WorkCover - remorse - conviction - penalty imposed.

LEGISLATION CITED: Occupational Health and Safety Act 2000

Inspector Alan Jeffrey Broomham v Sebastian Builders & Developers Pty Ltd; Francisco Sebastian; Franco Crane Hire Pty Ltd [2007] NSWIRComm 107 Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37 Inspector Jelley v Albright & Wilson (Australia) Limited (2007) 164 IR 456 CASES CITED: Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Nelmac Pty Ltd v Franke (Inspector) (2006) 151 IR 63 Sacco Builders Pty Ltd v Inspector Chaston (2009) 188 IR 79 WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313

Ms L McManus of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Ms L Rowan of counsel (Defendant) Marsdens Law Group

INSPECTOR GJALTEMA v SEBASTIAN BUILDERS & DEVELOPERS PTY LTD

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

1 Sebastian Builders & Developers Pty Ltd ("the defendant") carried on, until recently, the business of construction and building of residential and commercial projects, principally in the Wollongong region of New South Wales. 2 The defendant contracted with MJ Baker Constructions Pty Ltd ("MJ Baker") in approximately 2007 to perform carpentry and joinery services during the construction of a residential duplex at 34 Kaleula Crescent, Kiama, New South Wales ("the site"). 3 The Master Builders Association of New South Wales ("MBA") employed Mr Daniel Allen as a fourth year apprentice carpenter. Mr Allen had been indentured to the MBA for about three and a half years prior to an incident to which I will shortly refer. He commenced working with MJ Baker on 27 March 2007. 4 At approximately 9.20 am on 30 April 2007, while attempting to install joist hangers at the site, Mr Allen fell approximately 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 statement of agreed facts, the evidence, and throughout this judgment. 5 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 contusions on the right side of his brain. Mr Allen underwent surgery for a right temporal craniotomy. Other injuries included a right pneumothorax, dislocated right ring finger and right ear injury. Mr Allen remained in hospital for approximately four weeks, resuming work in the building industry in approximately March or April 2009. He initially began working six hours per week, gradually increasing his hours to full time in August/September 2009. 6 The defendant, in an amended application for order, was charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act") by 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 defendant's undertaking while they were at the defendant's place of work. 7 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 the construction of a brick veneer two storey residential duplex 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 securely covered in a manner that ensured that people working near the penetrations were not at risk of falling more than two metres through the 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.

Particulars (d) and (e) were not relied upon by the prosecutor. 8 The defendant pleaded guilty to the offence charged. I am satisfied, on the evidence, that the defendant is guilty of the offence as charged, and that it was appropriate for the plea of guilty to be entered. It follows, therefore, that this judgment is concerned only with the question of penalty. Prosecutor's evidence 9 Ms L McManus of counsel, who appeared for the prosecutor, tendered an agreed statement of facts, which provided: ... 2. Sebastian Builders and Developers Pty Ltd [ACN 080 563 435] is an incorporated entity whose registered office is situated at C/- Barnett & Cachia Accountants, Level 1, 13 Victoria Street, Wollongong in the State of New South Wales ("defendant"). The defendant carried on the business of the construction and building of residential and commercial projects. 3. MJ Baker Constructions Pty Limited [ACN 104836482] ("MJ Baker") is an incorporated entity whose registered office is at 118 Kembla Street Wollongong in the State of New South Wales. 4. At all material times the defendant carried on the business of the construction and building of residential and commercial projects. At all material times the defendant was undertaking the construction of a residential duplex at 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 the defendant employed Mr Gregory Keith Smith as a project manager at the site. 7. At all material times MJ Baker contracted with the defendant 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. MJ Baker employed approximately 8 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 MJ Baker. At all material times MJ Baker sub-contracted Mr Dean Blachnig as a carpenter at the site. 9. The undertaking conducted by the defendant at the site was the construction of a residential duplex. 10. At all material times, the defendant employed Mr Gregory Keith Smith as a project manager at the site. 11. 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. Mr Allen had been indentured to the MBA for about 3 ½ years prior to the incident, including the period he was working with MJ Baker. Mr Allen had commenced working with MJ Baker 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 there on three other days during April 2007, being Thursday 26 April, Friday 27 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 in Unit 2. 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. It was the higher open penetration through which Mr Allen fell. The concrete area on which he landed also comprised a partially constructed brick wall as shown in photograph 7 taken by Inspector Cobbin on 30 April 2007. 21. 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 22. 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. 23. 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. 24. 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 airgun 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. 25. 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). 26. 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. 27. 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. 28. 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. 29. 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. 30. On 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. 30. In approximately March or April 2009 Mr Allen resumed work in the building industry. He began working six hours per week with building contractor Lawrence Francis Bulmer, where he was gradually increased to full time work in August-September 2009. Mr Allen has continued to work with Mr Bulmer and is currently still doing so at the present time. 31. 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 and Inspector Jurmann took a number of photographs. 32. Inspector John Gjaltema attended the site at about 2pm on 30 April 2007. RISKS TO HEALTH AND SAFETY PRIOR TO THE INCIDENT: 33. The particleboard flooring on both the upper and lower levels comprising the ground floor in Unit 2 had been laid by MJ Baker approximately two weeks prior to the incident on 30 April 2007. The two penetrations remained open for about two weeks prior to the incident. When MJ Baker returned to the site no handrails had been erected around the penetrations and the penetrations had not been covered over in any way. 34. 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. 35. Mr Errington stated that MJ Baker's contract of work did not include the installation of temporary handrails. 36. Before the incident, the defendant's project manager Mr Gregory Smith was aware that there was a risk to health and safety from unsecured open penetrations in unit 2. He stated that Mr Errington had told him that MJ Baker did not put fall protection in around the penetrations because MJ Baker intended to drag large timber frames for the windows through the area. 37. Mr Smith stated that it was MJ Baker'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 taken by Inspector Jurmann. 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 photographs 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 MJ Baker and the defendant had various policies and procedures in place to cover the work being carried out at the site on the day of the incident. 42. The defendant'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 OHS 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 the Site Specific OHS Management Plan and to conduct regular inspections of the areas and work practices under the control of the project manager. Among other roles, the site foreman 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 Site Specific OHS 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 prior to the commencement of works". Mr Smith stated that the defendant 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 subcontractor's safe work method statement. 45. Mr Allen was not provided with a site-specific safety induction or risk identification by the defendant. He did not complete the defendant's 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 Site Specific 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 Site Specific Occupational Health and Safety Management Plan, whether site inspections were held on a weekly basis was up to the Project Manager's discretion. 47. There was no discussion between MJ Baker and the Defendant regarding the identification of the risks of the inadequately guarded or secured penetrations in Unit 2 and controls to eliminate or minimize this risk. 48. Mr Allen was at risk of falling more than 2 metres through the open penetrations on the ground floor in Unit 2. EVENTS FOLLOWING THE INCIDENT: 49. Arising out of the same incident, MJ Baker has been convicted by this Court of a breach of Section 8(2) of the Act. Mr Errington has also been convicted of a breach of section 8(2) of the Act by the operation of section 26. 50. Following the incident MJ Baker 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. 51. The following measures regarding securing the open penetrations in Unit 2 of the site were taken: a. Handrails were constructed to secure the open penetration on the lower level. b. A ramp was constructed to completely secure the open penetration on the higher level and allow safe access and egress on the site. c. Handrails were installed to the open rear doorways of the first floor. 52. After the incident, the defendant conducted an investigation into the circumstances of the incident. 53. After the incident the defendant 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 Safe Work Method Statements. 54. On the day of the incident, the defendant was issued with a Prohibition Notice requiring installation of handrails or other measures to address the risk of falls from height of approximately 3.5 metres at the site. A second prohibition notice was issued the same day to the defendant requiring the defendant to address risks of falls while trying to access scaffolding due to insufficient ladders or stairs. Again, on the day of the incident the defendant was issued with four improvement notices, one of which related to lack of safe access and egress to all levels of work. The defendant complied with the aforementioned two Prohibition Notices and four Improvement Notices issued by WorkCover inspectors on the date of the incident. 55. Prior to the incident the defendant had been, since 2003, issued with four improvement notices, one prohibition notice and a penalty notice relating to risks of falls from heights. RISK ASSESSMENT: 56. Prior to the incident the defendant failed to carry out, or ensure that there was carried out, 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. 57. 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. 58. After the incident, the defendant 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 dated 3 May 2007 signed by Inspector John Patton;

(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 the 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) 3 colour photographs taken by Inspector John Gjaltema dated 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 DP 33901 34 Kaleula Crescent Kiama issued on 6 October 2006; (v) Sebastian Builders and Developers Pty Ltd Site Specific OHS Management Plan 34 Kaleula Crescent, Kiama; (vi) Sebastian Builders and Developers Pty Ltd 34 Kaleula Crescent, Kiama, WMS, Risk Analysis, Concrete MSDS, Insurances; (vii) MJ Baker Constructions Pty Ltd Safe Work Method Statement dated 1 March 2007; (viii) Australian Standard 1657-1992 Fixed platforms, walkways, stairways and ladders; (ix) Prior Conviction Record for Sebastian Builders and Developers Pty Ltd, which recorded that the defendant was convicted of three offences in 2002 and fined $4,000 for each offence and two offences in 2007 for breaches of s 8(1) and s 8(2) of the Act where the defendant was fined $56,875 for each offence. 11 A copy of the judgment of Haylen J in respect of the last two convictions was provided to the Court: Inspector Alan Jeffrey Broomham v Sebastian Builders & Developers Pty Ltd; Francisco Sebastian; Franco Crane Hire Pty Ltd [2007] NSWIRComm 107. Defendant's evidence 12 Ms L Rowan of counsel, who appeared for the defendant, called Mr Frank Sebastian, the principal director of the defendant at the time of the incident, to give evidence. He was required for cross-examined. 13 The defendant has been operating under the name Sebastian Builders & Developers Pty Ltd for approximately 15 to 20 years. Mr Sebastian engaged employees to run his office as he was not fluent in the English language. He said that he had been involved in the building industry for approximately 40 years. At the time of the incident, the defendant was involved in approximately six or seven work sites. At the time of the sentencing hearing, the defendant was no longer operational, having ceased operations for almost one year. The only building work now being performed by the defendant is the occasional fixing of defects or "bits and pieces" on old job sites. Mr Sebastian's evidence was that even the defendant's cheque account had been closed. Mr Sebastian is now semi-retired. He performs some maintenance work only on buildings earlier erected by the defendant. 14 Mr Sebastian's son, Francois, held a senior position in the defendant company. Mr Gregory Smith was the Project Manager at the Kaleula Crescent site at the time of the incident. Mr Francois Sebastian and Mr Smith organised the work at the defendant's sites and played a major role in the day to day running of the business. Mr Smith organised the contractors who would attend at the site. His responsibility was to also ensure that a site would be safe when it was attended by a contractor. Mr Sebastian's evidence was that prior to the commencement of the work at the site, Mr Francois Sebastian and Mr Smith approached Mr Sebastian about the possibility of his stepping back in the company and for them to take on a greater role. He thought it was a good idea as Mr Francois Sebastian and Mr Smith would find it easier than he to follow the building industry rules and regulations. 15 Mr Smith was tasked with the principal work at the site. Mr Sebastian's evidence was that he had visited the site twice prior to the incident. Mr Sebastian's evidence was that the last time he was at the site prior to the accident, the flooring had not been laid in Unit 2. Mr Sebastian gave evidence that if he had been aware of the open penetrations, he would have taken steps to have them covered. 16 When asked how he felt about what happened to Mr Allen, Mr Sebastian told the Court that he was devastated and "I felt like - the carpenter, being the manager from the carpentry firm, shouldn't ask young apprentice to go and do that job there when you see it's not safety [sic]."

Relevant principles 17 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 18 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence, as set out in the agreed statement of facts, and the evidence. Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offence, it is relevant to set out the important matters. 19 The defendant entered into an arrangement with MJ Baker 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. The ground floor of Unit 2 was split level with the split occurring at approximately half way along the level. The rear half of the floor area was 740 millimetres lower than the front half. The floor was constructed of particle board. 20 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. 21 The offence occurred in circumstances where no handrails had been erected around the open penetrations and the open penetrations had not been covered or guarded in any way. 22 On 30 April 2007, Mr Dean Benjamin Blachnig, a qualified carpenter subcontracted by MJ Baker to work at the site, instructed Mr Allen to nail joist hangers near the entry of Unit 2. He instructed Mr Allen to use a nail airgun and a stepladder. Mr Blachnig and Mr Michael Errington, the director of MJ Baker and the Site Manager and Supervisor, commenced work on the lower level of the ground floor. Mr Allen stated that he was standing on the plank of the trestle scaffold prior to the fall. Neither Mr Blachnig nor Mr Errington observed Mr Allen fall. 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. 23 The distance from the concrete floor below to the lowest of the openings was approximately 2.82 metres. The distance from the concrete floor below to the upper opening was approximately 3.56 metres. The 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. There were no handrails around this I-beam. The trestle scaffolding consisted of a plank on a trestle which ran along a wall without protection. The distance between the concrete floor and the plank was 4.02 metres. There were no handrails on the trestle scaffold. 24 Clearly, the absence of any safety measure in respect of the open penetrations created an obvious and foreseeable risk to all persons working in the vicinity of the open penetrations. The risk that a person could fall through these open penetrations was obvious. The defendant, through its Project Manager, Mr Smith, was aware of the risk to health and safety from unsecured open penetrations in Unit 2. Mr Smith stated that he had been advised by Mr Errington that fall protection had not been placed around the open penetrations because MJ Baker intended to drag large timber window frames through the area. 25 Furthermore, Mr Allen was a young apprentice at the time of the incident. He was not provided with a site specific safety induction, or risk identification by the defendant. Nor did he complete the defendant's Site Induction Registration Form, or sign the Site Specific Induction Employee Register when he commenced working at the site. Mr Allen was not advised to wear, or required to wear fall protection equipment. 26 There was no discussion between the defendant and MJ Baker regarding the identification of the risks to health and safety of workers arising from inadequately guarded or secured penetrations in Unit 2 and controls to eliminate or minimise the risk of falling. 27 In my opinion, the defendant, who was the principal contractor at the site, failed to ensure that there were barricades or handrails around or over the open penetrations which had remained open for approximately two weeks prior to the incident. This must result in this offence falling within the more serious class of cases that comes before this Court. The defendant knew of the risks to safety and had been advised by MJ Baker that it intended to drag large timber window frames through the open penetrations. 28 Ms Rowan acknowledged that the defendant was the principal contractor at the site, and that it had the ultimate responsibility for ensuring the health and safety at work of both employees and non-employees working at the site. However, it was submitted the "overt offending behaviour, that was far higher by the co-defendant MJ Baker and Mr Errington personally than by Sebastian Builders. They were, for want of a better word, Johnny on the spot." 29 This submission was directed at the objective seriousness of the offence. Ms Rowan agreed with the prosecutor's assessment of the risk, observing "It was a big hole in the ground, blindingly obvious one would have thought." 30 It follows that there was a complete lack of attention to ensure safety on the day of the offence. Mr Allen was instructed to carry out work near an open penetration without supervision or any explanation as to how such work could be safely carried out near an open penetration 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 defendant had a Site Specific OHS Management Plan for 34 Kaleula Crescent Kiama, which included under the heading "Hazard Identification Site Hazards," "Working at Heights - Scaffold - Safety Lines." 31 In the section dealing with Risk Assessment - Safe Work Method Statement under Part 4 Risk control, it provided for "safe access to work area is available and maintained at all times with good housekeeping practices enforced." Under the heading "Safety Inspection Checklist" of the Plan, it enquired "are there guard rails or equivalent protection to stop falls from open edges on scaffolds, mobile elevating work platforms, buildings, gangways, excavations, etc?" In addition, the Plan also provided that the site foreman was to ensure all employees and trades/subcontractors are appropriately inducted prior to commencing work on the project, and ensure implementation of and compliance with the Site Specific OHS Management Plan. Clearly, the defendant failed to comply with its Site Specific OHS Management Plan and its contents were not made known to Mr Allen. 32 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 offence. 33 The simple remedial steps taken after the incident further highlight that the risk was easily avoidable. The following measures regarding securing the open penetrations at the site were taken after the incident: (a) handrails were constructed to secure the open penetration on the lower level;

(b) a ramp was constructed to completely secure the open penetration on the higher level and allow safe access and egress on the site;

(c) handrails were installed to the open rear doorways of the first floor. 34 After the incident, the defendant conducted an investigation into the circumstances of the incident and revised and changed its OHS Safety Management Plan. Subcontractors were subsequently required to provide documented evidence that all the relevant subcontractors' employees had been inducted and signed the relevant Safe Work Method Statements ("SWMS"). The defendant complied with two Prohibition Notices issued on the day of the incident and four Improvement Notices, one of which related to the lack of safe access and egress to all levels of work. 35 Mr Sebastian's evidence was that the defendant completed one further project after the Kaleula Crescent project. The defendant ceased operating approximately one year ago, with the exception of carrying out work on defects which arise from time to time at projects already completed by the defendant. The defendant no longer employs anyone in its office. 36 Ms Rowan did not question the need for general deterrence, however, the effect of her submission was that I should not include any element in the penalty for specific deterrence. 37 In respect of general deterrence, I adopt the observations that I made in Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37 at [50] - [53]: [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. ... 38 I therefore include an element in the penalty for general deterrence. 39 In relation to specific deterrence, I accept that in light of the evidence given by Mr Sebastian, this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. However, as the defendant is still operating, albeit on a very limited basis, I include a small component in the penalty for specific deterrence. Subjective factors 40 The relevant subjective factors include that the defendant, according to the evidence of Mr Sebastian, has been in operation for 15 to 20 years with his personal involvement in the building industry spanning approximately 40 years. The defendant has convictions arising out of two prior incidents under the Act. The charges dealt with by Haylen J in Inspector Broomham v Sebastian Builders related to the collapse of a crane during dismantling and are therefore distinguishable from the factual basis of the offence here. As the defendant has previous convictions under the Act, the maximum penalty for the offence is $825,000. 41 The defendant expressed his remorse in respect of the incident. His evidence was: Q. Can you tell the court how you felt about what happened to Mr Allen? A. I felt really, really devastated because I am person that what's happen now shouldn't have happen - disregard whose fault was - I felt like - the carpenter, being the manager from the carpentry firm, shouldn't ask young apprentice to go and do that job there when you see it's not safety [sic]. And so that kill me, you know. I cannot understand how happen. Especially that carpenter - I don't mean the apprentice, the carpenter, which is the manager, he was working for me for seven or eight years, so I knew he was competent, I knew he was good carpenter. I could not understand why he say, "You do that job there and I do something else" and leave him alone on this danger spot. So I feel really, really--

Q. So you were devastated? A. --devastated, yes. 42 The defendant assisted Mr Allen's family, providing accommodation for them in a hotel in Wollongong during Mr Allen's hospitalisation. Mr Sebastian was unable to recall how long Mr Allen's family remained in the hotel, however, his evidence was "as long as they needed." 43 The defendant entered a plea of guilty, although not at the first opportunity. The matter was initially listed for trial in February 2010. An adjournment was sought and granted on the first day of the trial, which was subsequently fixed for trial in August 2010. On the first day of the trial, the defendant entered a plea of guilty to an amended application for order. The prosecutor acknowledged that the defendant was entitled to a discount for the utilitarian benefits of the plea of guilty. I discussed the principles to be applied in determining the appropriate discount for a late plea of guilty in Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 at [54] - [58]: [54] The relevant subjective considerations include a plea of guilty. The plea was entered to an amended application for order which was filed in Court on 6 September 2007, two days before a two week trial was due to commence. [55] In its guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383 the Court of Criminal Appeal held at [160]: … (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. [56] Spigelman CJ, with whom other members of the court agreed, said at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. [57] Wood CJ at CL said (at [163]): ... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice. [58] In R v Gorman (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, stated at [64], after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton : In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration. 44 I propose to allow a discount of 20 per cent for the plea. 45 I also take into account the steps taken by the defendant to avoid the breach recurring and that the defendant co-operated with the WorkCover Authority. 46 In determining penalty, Ms Rowan acknowledged that a significant penalty was required, but one that reflected both the "objective offending conduct of the company" which, it was submitted, was less than that of MJ Baker, but that also took into consideration the fact that there are previous convictions, including a serious previous conviction, albeit, of a very different factual basis. This led counsel to submit that the appropriate penalty would be something comparable to the penalty imposed upon MJ Baker. 47 In respect of this submission, it is important to restate that careful attention must be given to the maximum penalty in determining sentence. 48 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. 49 It has been held on a number of occasions by this Court and the Supreme Court of New South Wales, Court of Criminal Appeal that comparisons with sentences passed in other cases is not helpful. In WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd (2006) 157 IR 313, the Full Bench observed at [38]: [38] Nothing in her Honour's judgment explains how this very serious offence resulted in a penalty of less than five per cent of the maximum available. While the appellant argued that the explanation must be that too much weight was given to subjective matters, that is not apparent from her Honour's judgment. We consider that there are real difficulties in comparing penalties imposed under the Occupational Health and Safety Act , even in cases where there is an essential common feature, such as a falling incident, crushing incident etc, because of the myriad of differing surrounding factual circumstances in the cases. Nevertheless, while we do not foreclose the outcome in any particular case, we find it difficult to conceive of any case involving a fall of over five metres, in the absence of any fall protection equipment, which results in serious injury or the potential for such injury, where a fine of the present magnitude could properly be the result (see, for example, Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49; WorkCover Authority of New South Wales (Insp Hopkins) v Red Lea Chickens Pty Ltd and Magg Transport and Packing Pty Limited [2003] NSWIRComm 71; Inspector Glass v B T Engineering Pty Ltd as Trustee of the Bruce Thomas Family Trust [2004] NSWIRComm 245; and Inspector Dubois v Masters Civil Pty Ltd and Anor [2006] NSWIRComm 180 - only the last of which was the subject of an appeal (which was unsuccessful: Masters Civil Pty Limited v Inspector Dubois [2006] NSWIRComm 332))

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