(d) the failure to provide adequate instruction in the completion of a risk assessment for the task.
2. The above listed failures increased the risk of the workbox falling to the ground as they removed layers of safety designed to prevent the risk of the workbox falling to the ground.
11 It is important to point out at this stage that [21] of the agreed statement of facts makes it clear that there was no evidence as to what caused the failure in either the hydraulics and/or the controls of the crane which in turn caused the workbox to fall. In this context, the prosecutor acknowledged that any factual matter which was adverse to the interests of the defendants would need to be proven to the criminal standard and that there was simply insufficient evidence to allow any conclusion to be made as to the reason why this unfortunate incident occurred.
12 It was for this reason that the supplementary agreed statement of facts was prepared and the reason why [2] of that document is framed in the manner in which it is. It is for this reason also that there is no specific allegation contained within the particulars of the charge to the effect that the incident which occurred resulted from any particular omission or conduct of the corporate defendant.
13 Documentary evidence was tendered on behalf of the defendants. In an affidavit, Scott Jackson described, inter alia, the standard procedures utilised by the corporate defendant at the time of the accident that were designed to comply with its occupational health and safety obligations. Mr Jackson readily conceded that there had not been any inspection of the site where the work was to be carried out before the day of the particular job. However, he said that the particular crane had been used at those premises before and was seen to be suitable for use in them having regard to its small wheelbase and reach. He also conceded that a representative of Boral had not signed a site safety induction form prior to the job being completed and that other forms had not been completed in their entirety, or had been completed incorrectly. Nevertheless, I am satisfied on the basis of the evidence of Mr Jackson that the personnel engaged to perform the work for the corporate defendant that day were experienced, were generally well-trained and instructed and that they were attentive to the occupational health and safety risks which accompanied the particular work to be performed. Furthermore, it was the evidence of Mr Jackson that a number of changes to the company's work practices had been implemented after the incident, firstly at the request of the prosecutor and more latterly of its own initiative.
14 Mr Jackson said that the corporate defendant was experiencing some financial difficulties as a result of the general downturn in the building industry and that he was endeavouring to sell the business and resume work as a sole contractor.
15 Mr Jackson was of particular concern about the impact that any conviction would have upon the corporate defendant in terms of its ability to secure work especially from large organisations and upon himself in terms of his requirement to disclose any personal conviction when entering a foreign jurisdiction, and in particular the USA and some Asian countries.
16 It was the evidence of Mr Jackson, his father, mother and long-standing partner that the incident which gave rise to these proceedings has had a profound effect on him personally and that he had become withdrawn and subject to mood swings. I am satisfied that the incident and its sequelae have had a profound effect upon Mr Jackson and that he has been sincere in his expression of remorse and contrition concerning the occurrence. Furthermore, he has formed a close personal relationship with one of the injured persons and has gone to some lengths to enquire about the welfare of the other person.
17 Character references and other material indicate that Scott Jackson is a person of good character and that the defendant corporation is a good corporate citizen.
18 Finally, there is evidence, as conceded by the prosecutor, that the defendants co-operated fully with the WorkCover Authority in and about its investigation of the incident and in compliance with its requests for improvements to the occupational health and safety processes used by the corporate defendant.
19 The commencing point for the assessment of penalty is the objective seriousness of each of the offences. Obviously, each breach of the Act must be regarded seriously, having regard to the objects of the legislation. However, there are also, obviously, degrees of seriousness. The defendants submitted that, viewed objectively, these breaches were in the lower order of seriousness and the prosecutor did not contend otherwise. I agree.
20 In essence, the particulars of the charge allege a failure to carry out particular matters in a particular way. The risk assessment was said to have been incomplete because of the failure to visit the site and the failure to evaluate the risks associated with the work and to complete certain documentation. As against this, the corporate defendant's personnel were familiar with the site. Furthermore, there was said to be a failure to provide information and instruction to employees to ensure that these matters were attended to. However, all of these failures occurred in the context of existing systems, procedures and documentation, which albeit not perfect, were in operation. Some of the omissions may also be sheeted home to Mr French who had failed to complete some of the forms correctly. Furthermore, it must be borne in mind that the risks created by these omissions "removed layers of safety" but, on the evidence, did not themselves cause the incident which occurred.
21 When considering the objective seriousness of the offence, the focus of attention must be on the offence as charged in the context of the relevant factual matrix. Furthermore, there must be a causal nexus between the conduct of the defendants and the offences with which they are charged.
22 All of this will require an evaluation of the available factual material. In considering the factual material, I should also refer to the established principles that deal with the onus and standard of proof in connection with the fact-finding process involved in the sentencing component of criminal proceedings. There is a discussion about these matters in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [25] and [27], their Honours said:
[25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
(Footnotes omitted)